Campaign

TERMS AND CONDITIONS

Please read the following terms very carefully as they set out your rights and obligations when you register for, or use any of our services.

INTRODUCTION

By registering for, or using any of our services you agree that you have read, understand and are bound by these terms, regardless of how you registered for or use the services.

Without limiting the above, we may ask you to accept any or all of the terms when you first register for, or start using a service.

If you do not want to be bound by the terms, you must not register for, or use a service.

If you concluded a written contract with us, you will also be bound by these terms. However, to the extent that there is a conflict between the written contract and these terms, the written contract will prevail.

Interpretation of these terms

In these terms -

agreement means the agreement between us and you that comes about by your acceptance of these terms as set out in the section headed "Introduction" above;
PsychoMarketing website means the websites that we own and operate by Psychomarketing Ltd or our agents including any page, part or element thereof;
content includes any information, data, text, music, sound, graphics, video, messages, hyperlinks or tags;
downloads means any software, data, application, code, files or content that you retrieve, view or download when using a service;
charges means the amounts we charge you for rendering our services, including (without limitation) our transaction or subscription charges, and any third party charges we incur;
intellectual property rights includes (without limitation) any and all rights, title and interest (whether registered or not) in and to any intellectual property, copyright, related rights, patents, utility models, trade marks, trade names, service marks, designs, logos, devices, know-how, trade secrets and inventions (whether patentable or not), goodwill, source code, meta tags, databases, text, content, graphics, icons, and hyperlinks and all other identical or similar intellectual property as may exist anywhere in the world and any applications for registration of such rights which are all as such protected by domestic and international legislation and treaties from infringement;
service means any service, product, goods, downloads, content, program or website that we may provide from time to time;
terms means the terms and conditions set out herein, and includes any additional terms (as defined in the section headed "Additional terms" below);
use includes (without limitation) accessing, retrieving, downloading, logging on to or viewing a service;
VAT means value-added tax;
we, us and our means Psychomarketing Ltd and includes our successors in title and/or assigns;
you and your means any person who registers for, or uses any of our services;
the singular includes the plural and vice versa; and
headings are only for reference and not interpretation.

CHANGES TO TERMS

We may change any or all of the terms including (without limitation) the charges at any time without notice to you. Any changes will become effective when we publish them on this website. You must check the website and the terms regularly for changes. By continuing to use our services after we make the changes, you agree to be bound by the changed terms and charges. If you do not accept the changed terms or charges, you must stop using the service (see the section headed "Ending a service" below).

ADDITIONAL TERMS

Some of our websites or documents may contain additional rules, guidelines, charges or terms and conditions (additional terms). By subscribing to or using our services relating to those websites or documents, you agree to be bound by, and comply with those additional terms. These terms apply to the extent that there is a conflict between these terms and the additional terms.

SERVICES - GENERAL

We always try to provide the services to the best of our ability.

We may suspend, interrupt, change or end any service for any reason without notice.

We will try to widely publicise changes to the services which apply generally.

We may also give you advance notice of any interruption of a service due to maintenance.

Limitation of liability and indemnity In this section -

damages means all damages of whatever nature and includes (without limitation) all damages, loss, claims or costs, including (without limitation) loss of data, profits or custom, or business foregone whether -

in contract, delict or otherwise;
direct, indirect, special or consequential;
foreseeable or not; and
notification of the damages were given in advance or not; and

uncontrollable events mean any circumstances beyond our reasonable control, including (without limitation) fire, explosion, earthquake, flood, storm or other adverse weather conditions, war declared or undeclared, civil war, revolution, civil commotion or other civil strife, riot, blockade, embargo, sanctions, epidemics, act of any government or other authority, compliance with government orders, demands or regulations, or any act or omission on the part of a third party.

You subscribe to and use any service at your own risk.

Neither we nor our affiliates, employees, shareholders, agents or service providers are liable to you or any third party for any damages suffered by you or a third party howsoever arising, including (without limitation) any damages suffered by you due to:

our negligence, or the negligence of our affiliates, employees, shareholders, agents or service providers;
your use of a service;
any interruption of, or error in the service;
our failure to fulfill our obligations as a result of uncontrollable events; or
disclosure of your information.

If you suffer damages or are dissatisfied with a service your only remedy is to end the agreement or stop using the service (see the section headed "Ending a service" below).

You indemnify, us and our affiliates, employees, shareholders, agents and service providers, against all third party claims, damages and legal costs howsoever arising from or relating to -

your breach of these terms;
any claims made by third parties by your use of a service.

No warranties Despite anything to the contrary in these terms, we -

provide all services "as is" and "as available"; and
don't warrant, represent or guarantee, whether expressly or by implication, that any service is free of errors or interruptions, always available, fit for any purpose, secure or does not infringe any third party rights.

Without limiting the generality of the above, no service is fault-tolerant or is designed, manufactured or intended for use or resale as online control equipment in hazardous environments requiring fail-safe performance, including (without limitation) to use in the operation of nuclear facilities, aircraft navigation or communication systems, air traffic control, direct life support machines, or weapons systems, in which any failure could lead directly to death, personal injury, or severe physical or environmental damage ("high risk activities"). In addition to the other disclaimers and limitations contained within this agreement, we and our affiliates, shareholders, employees, agents and service providers specifically disclaim any express or implied warranty of fitness for high risk activities including emergency notification services.

You should not regard any information, ideas and opinions expressed on this website as professional advice or as our official opinion. Please get professional advice before you take any course of action related to the information, ideas or opinions expressed on the website.

Some jurisdictions do not allow the exclusion or limitation of warranties or incidental or consequential damages, so the above limitations or exclusions may not apply. In such jurisdictions, our liability (and the liability of our affiliates, employees, shareholders, agents, and service providers) shall be limited to the greatest extent permitted by applicable law.

THIRD PARTY GOODS AND SERVICES

In many cases, we provide the services of third parties, or our services in conjunction with those of third parties including (without limitation) network providers.

In those cases, the following conditions apply:

We provide such services subject to the terms, conditions and limitations imposed by those third parties.
If those third parties change, suspend or stop providing such services, we may similarly change, suspend or stop providing the services to you without notice. We may nevertheless try to provide such a service in another way or by using another third party.
You authorise us to provide any of your information to those third parties to the extent that it may be necessary to enable the third parties and ourselves to provide the services to you.
To the extent that there is a conflict between the third party's terms and conditions and these terms, these terms prevail.
When you acquire goods, downloads or services from a third party through any of our services, you understand and agree that -

we are not a party to the contract between you and the third party;
we don't have to monitor the third party service you use;
the third party will be responsible for all obligations under the contract including (without limitation) warranties or guarantees;
you must evaluate the goods, software or service and the applicable terms and conditions before acquiring the goods, software or service; and
you indemnify us against any damages (as defined in the section headed "Limitation of liability and indemnity" above) howsoever arising from your acquisition and use of the third party goods, software or service.

We may reject or refuse any third party service used by you in conjunction with our service.

Messages are deemed to have been delivered when we have delivered or sent the messages to the immediate destination that our software is programmed for, including SMTP servers, mobile telephone networks, or any other intermediary server or API that is deemed to be the point of dispatch of the message.

Please note that, although we focus on providing extensive coverage aggregation services, third party network providers may choose from time to time to not be part of our networks or the networks of our service providers. This may result in messages not being delivered.

SMS / WAP PSMS / MOBILE / PREMIUM RATE SERVICES - ADVERTISING GUIDELINES

In addition to the other terms, this section applies:

In this section -

advertisement means any form of communication with your clients including (without limitation) advertisements, brochures and websites;
charges means network charges and premium charges;
network charges means the charges of the network service providers for use of their networks, e.g. SMS, MMS, USSD, GPRS; and
a premium charge means the content or value-added charges that you charge your clients for using your premium rate service.

This section sets out how you must advertise your services.

If you don't advertise your service in the way set out in this section, we may -

withhold your share of the monthly revenue for that service (if any) until you comply; or
suspend your service; or
remove any unused credits or messages; or
end the service if you fail to comply repeatedly.

All your advertisements must comply with the regional advertising guidelines and all legislation appropriate to your mobile service including but not limited to the UK PhonepayPlus code of practice. The following guidelines should also be followed:

The promotion material / site content must state the charges of your service fully and correctly. For example -

if your service is a polyphonic ringtone which costs R3 by way of a premium rate SMS but which still has to be downloaded via WAP, then your advertisement must state the following: "R3 (including VAT) + download charges ";
if it takes two SMSs to deliver a polyphonic ringtone, you cannot say that the charge is R3.00 if the net charge is R6.00. In such a case, the advertisement must state that the charge is R6.00 or "R3 per SMS (2 SMSs needed)."

The promotion material / site content must state the charges inclusive of VAT.
The font size of the charges must be such that they can be easily seen in the promotion material / site content. Your client must be able to see the charges with very little effort.
Your charges must be located on the promotion material / site content in such a place that your client can see it easily. You may not hide the charges in the terms and conditions.
You may not state the charges in some promotion material / site content and not in others.
If you give your client the option to unsubscribe for a service, you may only charge network charges to unsubscribe and you may not charge premium charges.
Your advertisement must state all the material terms and conditions to the extent that this is practical.

PREMIUM SMS SERVICES

Where a client uses a premium sms number to promote a service; solicit a response or generate revenue of any kind the client is responsible for compliance to all applicable regulations and terms including but not limited to PhonePayPlus; ICO; Network Operators; Billing Aggregators and all others that are applicable. In case of breaches of regulations or terms all fines and actions are the responsibility of the client. Psycho Marketing reserve the right to charge client for any investigations; fines; or other charges imposed on Psycho as a result of action or activities of the client.

This includes O2 and other network operator fine for premium rate breaches which at this time stand at:

Red Cards - £1,000
Red cards on 69xxx/79xxx/89xxx - £2,000
Yellow Cards - £500

this amount is subject to variation without notice and may apply to all operators.

MESSAGE SENDING SERVICE

We enable individuals or businesses to send text messages to customers.

We may approve or decline clients and API connections at our sole discretion.

We encourage the use and publicity of anti-spam policies.

We are not responsible for the deletion or failure to store information.

We have set no fixed upper limit on the number of message you may send through the service apart from how many credits are left in your account.

We may determine whether or not your conduct is consistent with the letter and spirit of the agreement and may end the service at any time if your conduct does not comply with the agreement.

Please see the section headed Ending a service below for more information on procedure for ending a service.

We may, in the future, with prior notification, limit the amount of storage space available to you.

Although we try our best to deliver message quickly, messages may be delivered late due to queuing or network traffic. This may still result in the message being seen as "delivered".

YOUR CONDUCT

You must only use the services -

in accordance with the terms;
for lawful purposes;
in accordance with all applicable local, national and international laws and regulations; and
for the purposes for which they are designed.

When you use our services, you must not -

do anything which violates any terms;
breach ICO, PPP, or network operator rules and guidelines
Where a wap push is used to promote a site or service, the lading page must clearly state all of the terms and conditions, the WAP push message must include the url or shortcode and the service provider contact details (identity and non premium rate UK customer service phone number). It is important to note that the consumer can not be instantly subscribed upon clicking on the WAP link.
send junk SMS messages, spam or any unsolicited messages (commercial or otherwise);
make any misrepresentation including (without limitation)

deceive, mislead, defraud or otherwise make misrepresentations to any person regarding any fact or circumstance;
impersonate or attempt to impersonate or otherwise misrepresent your identity to any person for whatever purpose or create a false identity mobile phone address or header;
change the content of communications received by you and thereafter forwarding same to others without indicating the nature of the changes; and
forge or otherwise manipulate origination details and data on any electronic data message with a view to disguising or deleting the origin of anything transmitted using our service;

transmit anything (including (without limitation) words and images) which is defamatory, discriminatory, obscene, lewd, offensive, threatening, abusive, harassing, harmful, hateful or which contains child or violent pornography, religious or racial slurs or threatens or encourages bodily harm or the like or which may violate any person's rights regardless of whether such content is accessed, transmitted, propagated, distributed, created or stored in a public or private context;
commit fraud or solicit or induce any person to participate in any commercial or non-commercial activities which are in the nature of a financial scam, "pyramid schemes" or "chain letters";
violate or infringe any intellectual property rights;
do anything which does or may -

damage, impair, overburden or disable any system of any person (including us) using our services;
interfere with another user's use and enjoyment of the service or of similar services;
interfere with or disrupt networks connected to the service or violate the regulations, policies or procedures of such networks; or
compromise or tamper with the security of our or any other person's software, hardware, systems, networks or services;

transmit any computer code which is designed to harm the operation of any software, hardware or network, including (without limitation) viruses, Trojan horses, worms, time bombs and cancelbots;
harvest or collect information about others, including mobile numbers; email addresses, without their consent for any reason;
violate the privacy of any person;
reproduce, replicate, copy, sell or re-sell any of -

our services or any part thereof (including (without limitation) websites and web pages, or any services that constitute the provision of telecommunications services in terms of applicable legislation); or
the information or data contained in our services;

repeatedly or in a rapid manner transmit content in such a manner as to have the effect of harassing a recipient;
transmit content that you do not own or do not have the right to publish or distribute;
access any of our services or any similar service of any third party or any network without authorisation or through hacking, password mining or any other means;
perform any illegal activities including (without limitation) promoting or facilitating access to, use of or sale of dangerous substances or devices;
use the service for commercial use without authorisation; or
help any third party to do any of the above.

Codes of conduct. You must comply with the following codes of conduct as required by all services providers who operate services in any territory.

AUDIT

We reserve the right to audit all sms campaigns and the messages used; we may also request opt-in details for any mobile number used in any campaign. Failure to act on requests to amend campaign messages or provide complete opt-in details within 48hrs of request may lead to your account being terminated and all credits removed without refund.

COMPLIANCE

As part of our compliance process we reserve the right to request opt-in information for any mobile phone number used in any campaign. Acceptable opt-in information must be provided within 48 hours. Where opt-in information is not provided we may block or cancel your account without refund or further notice or right to appeal. If you need help or advice on opt-in requirements please contact or us refer to the appropriate regulatory body.

We also reserve the right to review all messages used in any campaign including historic campaigns. All messages must meet regulatory requirements – where we consider that messages are non-compliant we reserve the right to cancel any campaign without refund. Where compliance issues are found we may cancel or block your account until we are confident that your campaigns meet all requirements. If you need help or advice please contact the appropriate regulatory body.

ENDING A SERVICE

You may end a service at any time for any reason by following the procedure set out in the website and these terms. When you end a service, the relevant provisions of these terms will apply including (without limitation) the provisions set out under the section "Charges and payment" below.

CHARGES AND PAYMENT

Charges. In consideration for using our services, you must pay us our charges, at the applicable rate then in effect, in the manner we specify including (without limitation) our charges for messages delivered or partially delivered using any available delivery method.

We may from time to time for limited periods offer "free trial" or similar promotions during which no charges or reduced charges shall apply. Such promotions are intended for you to test the capabilities of the service and/or for casual, personal use only. During such promotions, all these terms apply.

All charges are payable upfront. You must pay all charges upfront by buying service credits. If you have no credits, you cannot use the service. Once you have paid the upfront charges, you will only be able to use the service after a reasonable time to as we need to add the credits to your account.

Payment. Charges are due and payable at the time of, or before we deliver a message to your recipients, via every method of delivery based upon the billing plan we select. Payment is deemed to have been made as soon as the charge is available in our bank account. We may make other payment arrangements in our sole discretion, on a case-by-case basis.

You shall pay all charges free of set-off, charges or deductions.

If we issue an invoice to you, you must pay the invoice within 7 (seven) days of date of the invoice.

Your failure to pay any amount when due, will constitute a breach of these terms.

In the event of any Regulatory Fine as a result of the client's service, we shall be entitled to withhold or deduct the amount of such fine, charge or sum from any sums payable to the Client under this agreement, and/or to take all steps necessary to recover funds plus administration charges to cover this fine.

In the event that any amount on the client's account is outstanding, we shall be entitled to withhold or deduct this amount from any sum payable to the Client whether in premium rated revenue share or any other fees.

Bank Transfer. If you choose to pay for the service by bank transfer, and we receive no payment from the card issuer, you must pay all amounts due, on demand.

Taxes. Unless stated otherwise, all charges exclude taxes, including (without limitation) sales, use, personal property, value-added, withholding, excise, or other taxes and duties including penalties and interest. You are liable for, and must reimburse us for all taxes imposed in connection with or arising from the provision of any service (other than those assessed on our net income or capital gains) . You will provide us with sufficient information to enable the timely payment of any applicable taxes. The sum payable by you upon which any taxes are based shall be increased to the extent necessary to ensure that, after the deduction or withholding of any taxes, we actually receive and retain, free from liability for such taxes, a net amount equal to the amount we would have received and retained in the absence of such taxes.

Increase in charges. We may increase our charges at any time by notice to you.

If we increase our charges after you have bought credits from us, we will give you 14 days' notice of the increase. The increase will then apply to the credits that you have in your account.

Within the 14 day period you may choose to -

continue with the service subject to the increase; or
end the service in which case we will pay to you the value of any credits that may be left over in your account.

You may then use the service again by buying new credits.

Expiry of credits. You must use up your credits within 60 days from the date on which you bought the credits. We may extend this period on a case-by-case basis in our sole discretion.

Delivery Receipts. We do not guarantee the accuracy of delivery information. Where delivery receipts are provided by the networks or operators we will accurately provide this informationto the user. We may interpret or combine delivery information as part of the reporting system however the interpretation will not have result in changes to sending costs.

Delivery Receipts. Where messages are sent on a 'price per deliverd' basis the definition of delivered is messages that have not been reported as failed, barred, expired, rejected, or messages that have been automatically been removed by our system prior to sending to the aggregator. These include stops, illegal format, duplicates and other common number errors.

Delivery Receipts. Refunds for failed messages will be made 3 days after the original send date. This is to allow time for all messages to be delivered where possible within our standard three day expiry period. Refunded credits will be added to the senders account and will appear in the total credits available.

Conversion of credits. We reserve the right to convert basic rate credits to premium rate credits at any time. The conversion rate will be based on the price listed on the web site for each type of credit and will be effective immediately.

Termination. We reserve the right to automatically close and remove any account that has not sent any messages for a period of 3 months. All data, setup, and service information will be deleted.

Refunds of credits. You can ask us to refund any unused credits within 7 days of buying those credits. However, we do not refund branding charges, licenses, monthly administration charges, and any other charges that you pay to us.

When you ask us to pay back credits we will -

first deduct our charges for any messages sent;
pay you the amount on the scale that corresponds with the equivalent to the amount of message units sent;
keep 20% of the amount we refund you as an administration charge; and
keep any costs we incur to refund you (eg bank costs).

Save as set out above, we refund no payments or charges.

BREACH

If you breach any of these terms, then we may immediately, without prejudice to any of our other rights and without notice to you -

claim payment of all outstanding amounts due to us;
stop or suspend your use of any of the services;
end the agreement; and/or
claim damages from you.

In all cases, we may keep all amounts already paid by you and recover all our costs associated with your breach, including (without limitation) collection commission and attorney and client legal costs.

Effect of ending this agreement or suspension of service

If this agreement ends or a service is suspended for any reason, you are responsible for any outstanding obligations including (without limitation) payment of any costs or charges that may arise in connection with such ending or suspension, and payment of all outstanding charges for use before the ending or suspension.

Your payment and other obligations under this agreement are not suspended or otherwise affected by a suspension of access to/or use of a service (in whole or in part) where the suspension arises from your failure to comply with the terms.

We have no obligation to you after any termination or cancellation of a service or this agreement.

INTELLECTUAL PROPERTY

We (or the appropriate third party) retain all intellectual property to the services, the systems that provide the service and downloads.

You may not, directly or indirectly -

sell, sub-license, lease, distribute or otherwise transfer any downloads to any third party;
appropriate the downloads in whole or in part for whatever purpose;
decompile, disassemble or reverse engineer the downloads, or reduce the downloads to any format other than the format in which they were delivered;
create derivative works based on the downloads;
incorporate the downloads into any other content for whatever purpose;
remove any legal notices (copyright, trademark or other proprietary rights notices);
reproduce, publish, perform, broadcast, make an adaptation of, sell, lease, offer or expose any copy of any content in respect of which we own the copyright.
use the downloads for timesharing or service bureau purposes or otherwise for the benefit of a third party;
frame any portion of the web pages that are part of the service.

You must comply with all national and international laws pertaining to intellectual property rights.

GENERAL PROVISIONS

Governing law. The terms are governed by and must be construed under the laws England, UK. All disputes, actions and other matters relating thereto are determined in accordance with such law.

Whole agreement. The terms constitute the whole of the agreement between us and you relating to the matters dealt with herein. No undertaking, representation, warranty, guarantee, term or condition relating to the subject matter of the terms not incorporated therein will be binding on you or us. Any change or addition to the terms will only be valid if it is made by us under the section headed "Changes to terms" above.

Addresses. You select as your chosen address (domicile) for the purposes of receiving legal process and notices, the address furnished when you subscribed to or started using a service. We may send you any notices (other than legal process) by email. You will promptly tell us if you address changes.

No waiver. Any waiver, indulgence, relaxation or extension of any of the terms will be effective only in the specific instance and for the purpose given. No failure or delay on our part in exercising any of our rights will constitute or be deemed to be a waiver. No single or partial exercise by us of any of our rights will preclude us from any other or further exercise thereof or the exercise of any other rights.

Provisions are severable. Each provision of the terms is severable from the other provisions. If any provision is found to be invalid or unenforceable, we may change it under the section headed "Changes to terms" above or remove it in its entirety. The remaining provisions of the terms will nevertheless remain binding.

No agency or authority. These terms create no contract of agency, partnership, joint venture, or employment between you and us. You have no authority to bind us.

Cession and delegation. You may not cede, assign or delegate your rights or obligations under these terms. We may cede, assign or delegate our rights and obligations under these terms without your consent.