accepting the following Terms and Conditions you have entered into a contract between Phorest and/or a Phorest reseller and you the customer.
“Computer” means an electronic device that accepts information in digital or similar form and manipulates it for a specific result based on a sequence of instructions. “Reseller” means the party through whom access is being furnished to the Phorest website. “Phorest” means nDevor Systems Limited, an Irish registered company of Anglesea Mills, 9 Anglesea Row, Off Little Britain Street, Dublin 7, D07 F8PY, Ireland. “Internet interface” means the Messenger section of the Phorest website that enables you to send and receive SMS Text Messages and conduct other communication services. “Messenger” means the Internet Interface on the Phorest website that enables you to send and receive SMS Text Messages
A customer company or charity may only allow authorised employees of that company or charity to have access to Messenger. If a customer is a sole trader, partnership or any other business or personal entity, then only an employee or promoter of that entity may have access to Messenger. In relation to companies within a group, each account is limited to the distinct legal entity that owns the account. Other companies within a group may subscribe to an extension account
for a discounted price available from Phorest and/or a Phorest reseller.
3. No Modification.
The Software is licensed and distributed by Phorest and/or a Phorest reseller for sending bulk SMS Text Messages and other applications related to SMS. You are not authorized to integrate or use the Software with any other software, plug-in or enhancement, which uses or relies upon the Software when sending SMS. You are not authorized to integrate or use Messenger with any Phorest plug-in software not developed in accordance with Phorest.
4. Intellectual Property Rights.
The Software behind the Internet Interface that you are authorized by Phorest and/or a Phorest reseller to use are the intellectual property of and are owned by Phorest. The structure, organization and code of the Software are the valuable trade secrets and confidential information of Phorest. The Software is protected by copyright, including without limitation by European Union Copyright Law, international treaty provisions and applicable laws in the country in which it is being used. Unless specifically and expressly permitted by Phorest, you agree not to modify, adapt or translate the Software. You also agree not to reverse engineer, decompile, disassemble or otherwise attempt to discover the source code of the Software except to the extent you may be expressly permitted to decompile under applicable law, it is essential to do so in order to achieve operability of the Software with another software program, and you have first requested Phorest to provide the information necessary to achieve such operability and Phorest has not made such information available. Your Reseller has the right to impose reasonable conditions and to request a reasonable fee before providing such information. Any information supplied by your Reseller or obtained by you, as permitted hereunder, may only be used by you for the purpose described herein and may not be disclosed to any third party or used to create any software which is substantially similar to the statement of the Software. Requests for information should be directed to the Phorest and/or a Phorest reseller Customer Support Department. Trademarks shall be used in accordance with accepted trademark practice, including identification of trademarks owners’ names. Trademarks can only be used to identify printed output produced by the Software and such use of any trademark does not give you any rights of ownership in that trademark.
Except as expressly stated herein, this Agreement does not grant you any intellectual property rights in the Software and Phorest reserves all rights not expressly granted herein.
5. Limitation of Liability
5.1 IN NO EVENT WILL PHOREST OR ITS SUPPLIERS BE LIABLE TO YOU FOR ANY DAMAGES, CLAIMS OR COSTS WHATSOEVER OR ANY CONSEQUENTIAL,INDIRECT, INCIDENTAL DAMAGES, OR ANY LOST PROFITS OR LOST SAVINGS, EVEN IF AN PHOREST REPRESENTATIVE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSS, DAMAGES, CLAIMS OR COSTS OR FOR ANY CLAIM BY ANY THIRD PARTY. THE FOREGOING LIMITATIONS AND EXCLUSIONS APPLY TO THE EXTENT PERMITTED BY APPLICABLE LAW IN YOUR JURISDICTION. PHOREST’S AGGREGATE LIABILITY AND THAT OF ITS SUPPLIERS UNDER OR IN CONNECTION WITH THIS AGREEMENT SHALL BE LIMITED TO THE AMOUNT PAID FOR THE SOFTWARE, IF ANY. Nothing contained in this Agreement limits Phorest’s liability to you in the event of death or personal injury resulting from Phorest’s negligence or for the tort of deceit (fraud). Phorest is acting on behalf of its suppliers for the purpose of disclaiming, excluding and/or limiting obligations, warranties and liability as provided in this Agreement, but in no other respects and for no other purpose. For further information, please see the jurisdiction specific information at the end of this Agreement.5.2 Any illegal use of the SMS service is strictly prohibited, in the form of messages containing any sexual, racist or discriminatory content and any such usage maybe considered to harassment to an individual or an organisation. Under no circumstances does Phorest accept liability for any content broadcasted by a customer utilising Messenger or Phorest software. This includes any content included in the header or otherwise. In addition, Phorest is not liable for any content broadcasted through Messenger in an unauthorised or illegal manner.5.3 THE SERVICES AND ALL INFORMATION, PRODUCTS AND OTHER CONTENT (INCLUDING THIRD PARTY INFORMATION, PRODUCTS AND CONTENT) INCLUDED IN OR ACCESSIBLE FROM THIS WEB SITE, ARE PROVIDED “AS IS” AND ARE SUBJECT TO CHANGE AT ANY TIME WITHOUT NOTICE TO YOU. TO THE FULLEST EXTENT PERMITTED BY LAW, PHOREST DISCLAIMS ALL REPRESENTATIONS AND WARRANTIES (EXPRESS, IMPLIED AND STATUTORY, INCLUDING BUT NOT LIMITED TO THE WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT OF PROPRIETARY RIGHTS) AS TO THE SERVICES AND ALL INFORMATION, PRODUCTS AND OTHER CONTENT (INCLUDING THIRD PARTY INFORMATION, PRODUCTS AND CONTENT) INCLUDED IN OR ACCESSIBLE FROM PHOREST MESSENGER.5.4 Phorest reserves the right to exclude you from this service.
6. Username and Password
6.1 After the customer has completed online registration, a username and password will be sent to the customer via e-mail or SMS text message. This login information serves as identification of the customer to Phorest. Phorest will perform no further authentication of the customer’s identity.6.2 The customer agrees that all website activities which can be traced to his username and password are deemed as having been performed by the customer himself and are legally binding for him.6.3 The customer is responsible for careful use and storage of the username and password. We recommend to change the assigned password when first using the service; additionally, we urge the customer to change his password regularly and take other appropriate measures to prevent misuse or theft of his login information.
7. Risks, Network Issues and SMS Transmission
7.1 The customer agrees that, by definition, access to the Internet, the GSM network and other communication media is associated with risks concerning authentication, data security, privacy, availability of services, reliability of transmission etc. – The customer agrees to bear full and exclusively responsibility arising from such risks and consequences of the customer’s usage of Phorest’s services.7.2 Phorest is not a mobile phone operator. The customer acknowledges that Phorest delivers SMS messages via major telecommunications companies and mobile network providers and therefore can only influence the delivery response transmission of SMS messages within the technical constraints imposed by the abovementioned providers. Phorest is thus not liable for any network related issues including latency, and late transmission.7.3 SMS messages submitted via Messenger will be transferred to the addressed mobile recipients within seconds to minutes, provided that the recipient’s phone is switched on and located in an area covered by his subscribed mobile network provider. The customer acknowledges that, depending on the recipient’s mobile provider service, it may not be possible to transmit the message to the recipient successfully, particularly if the provider does not support SMS delivery at all.7.4 Phorest is not a Internet Service Provider. Phorest makes its best efforts to provide SMS services on the website www.textbynumbers.com available 7 days a week, 24 hours a day. In order to use the Service, the customer must obtain access to the World Wide Web, either directly or through devices that access web-based content, and pay any service fees associated with such access. In addition, the customer must provide all equipment necessary to make such connection to the World Wide Web, including a computer and modem or other access device.7.5 The customer acknowledges that transmission of large SMS amounts (Greater than 50,000 messages per day) may be subject to restrictions and delays on the part of the mobile network providers affected. The customer agrees to communicate his intent to transmit such volumes to Phorest at least 5 business days in advance in order to ensure that such delivery can take place without disruptions.7.6 SMS messages are assigned a life time of 72 hours. SMS messages which could not be delivered successfully to the recipient’s mobile phone within this period will be discarded without notice.
Phorest’s handling of customer-related information, including SMS message content, is subject to Irish federal communication and privacy laws. The customer acknowledges that Phorest is obliged by law to store all message content and activity logs for six months, and that Phorest can be required by law to disclose details about a customer’s activity and SMS transmissions to government and law enforcement officials on explicit request. The customer acknowledges that SMS message content is transmitted unencrypted and that eavesdropping of mobile phone communications, including SMS delivery, by third parties is possible.
9. Technical and Other Modifications including Termination
9.1 Phorest reserves the right to enhance, develop, and modify services and contents on its website at any time without prior notice. Phorest reserves the right to discontinue temporarily or permanently with or without notice to the user.9.2 Both parties have a right to terminate the agreement effective immediately by serving a termination notice to the other party. By the termination of the agreement, Phorest has a right to delete all information on the customer’s account. If the customer terminates the agreement, there will be no refund of or part refund of the annual subscription or of any outstanding messages. Phorest may at their sole discretion terminate a User’s account if Phorest believes that the Customer has in any way violated the Terms and Conditions of Use. If Phorest terminates for any other reason than this, Phorest agrees to a refund to the customer based on the number of months remaining on the Annual Subscription. In addition, the cost of any outstanding messages left on the customers account will be refunded to the customer provided that it is Phorest who terminates the Agreement in the absence of violation of the Terms and Conditions of Use on the Customer’s part. Any such refunds must be requested in writing to Phorest at the above address within 30 days of termination.9.3 Any messages outstanding on a customers account after the Expiry of the Annual Subscription, will remain on our servers for 30 days. If the customer does not renew it’s subscription within this period, all messages will be deleted.
10. Customer’s Liability
10.1 If the customer causes damages or disruptions of the website or system applications of Phorest by bad intent, he, she or it becomes liable for all direct and incidental consequences and associated costs.10.2 The customer assumes full responsiblity for the content of SMS messages transmitted by himself or by a third party on his request. The customer agrees to abide to all laws and regulations applicable to the content and intent of SMS messages transmitted by him, her or it. The customer assumes liability for all consequences and costs arising out of offences against such regulations. The customer must ensure that his SMS delivery does not cause disturbance or harassment of a recipient or other third party. The customer agrees to refrain from sending SMS messages containing offensive, violent, pornographic, or discriminatory, or otherwise illegal content.10.3 Phorest has made it aware that the client in his collection of mobile numbers must obtain the positive consent of all mobile phone users to receive SMS data from the Customer. Positive consent requires an agreement with a mobile phone user and the Customer to send and receive text messages.10.4 The customer is not permitted to send SMS messages to recipients who have made clear that they do not wish to receive SMS messages or advertisements via SMS. Phorest is not liable for SMS messages delivered to a mobile phone user after he/she has requested to opt out from receiving any further SMS transmissions by the Customer.10.5 The customer agrees to indemnify and hold Phorest, and its subsidiaries, affiliates, officers, agents, co-branders or other partners, and employees, harmless from any claim or demand, including reasonable attorneys’ fees, made by any third party due to or arising out of Content the customer transmit through the Service, the customer’s use of the Service, the customer’s connection to the Service, the customer’s violation of the Terms and Conditions of Use, or the customer’s violation of any rights of another.10.6 The customer must specify for each SMS message which he wishes Phorest to transmit, a numeric or alpha-numeric originator containing information about the customer and his services. Phorest will not deliver SMS messages without originator information or with misleading originator information.
11. SMS Debits
Phorest debits transmitted SMS messages from the customer’s online SMS account according to its transmission logs. These logs are deemed correct and valid even if the customer has objected against the correctness of the accounting records, but Phorest’s investigations have not produced evidence of a technical problem or error. The SMS pricing scheme is published on the www.textbynumbers.com website. Phorest reserves the right to change prices with prior notice. Because Phorest cannot guarantee delivery of the SMS messages to recipients due to possible errors and outages on the part of mobile network providers, Phorest does not refund undeliverable SMS messages to the customer.
All complaints must be directed to nDevor Systems Limited, Anglesea Mills, 9 Anglesea Row, Off Little Britain Street, Dublin 7, D07 F8PY, Ireland, in writing and within 10 business days of the event causing the objection.
13. Governing Law.
This Agreement will be governed by and construed in accordance with the substantive laws in force: (a) in the Republic of Ireland, if a subscribtion to the Service is purchased when you are in any jurisdiction except those detailed below; or (b) in Japan, if a subscribtion to the Service is obtained when you are in Japan, China, Korea, or other Southeast Asian country where all official languages are written in either an ideographic script (e.g., hanzi, kanji, or hanja), and/or other script based upon or similar in structure to an ideographic script, such as hangul or kana; or (c) the State of California, if a subscribtion to the Service is obtained when you are in the United States, Canada, or Mexico
14. General Provisions.
If any part of this Agreement is found void and unenforceable, it will not affect the validity of the balance of the Agreement, which shall remain valid and enforceable according to its terms. This Agreement shall not prejudice the statutory rights of any party dealing as a consumer. A writing signed by an authorized officer of Phorest may only modify this Agreement. Phorest may license updates to you with additional or different terms. This is the entire agreement between Phorest and you relating to the Software and Service and it supersedes any prior representations, discussions, undertakings, communications or advertising relating to the Software or Service. If you have any questions regarding this Agreement or if you wish to request any information from Phorest please use the address and contact information above to contact Phorest.
Phorest, Messenger, and Memento are either registered trademarks or trademarks of nDevor Systems Limited in the European Union and/or other countries.