ROOTSMS provides its Service (as defined below) to you subject to the terms and conditions of this Agreement ("Terms" or "Agreement"). Please read this Agreement fully and carefully before using the Service.
This Agreement is between you (someone who wishes to use the Service) and us (ROOTSMS incorporated and registered in England and Wales)
By registering and/or using the Service in any way, you agree that you have read, understood and accepted this Agreement and all other operating rules, policies and procedures referenced herein, each of which is incorporated herein by this reference and each of which may be updated from time to time as set forth below, to the exclusion of any other terms and conditions.
If you accept on behalf of an organisation, you represent and warrant that you have the authority to do so.
We reserve the right, at our sole discretion, to change the terms of this agreement from time to time without notice. We will, however, announce any changes via the customer portal. Your continued use of the Service following any such changes constitutes your agreement to the changes.
If you do not understand and unconditionally agree to be bound by all of the terms of this agreement, DO NOT USE the service.
- Interpretation1.1 The definitions and rules of interpretation in this clause apply to this Agreement.Active Users: accounts that have used the Service in the 3 months prior to a specific action date.
Authorised Users: employees, agents and independent contractors authorised by you to use the Service.
Business day: a day other than a Saturday, Sunday or bank holiday in England when most banks in London are open.
Customer portal: the part of the website through which you manage your account.
Confidential information: information considered confidential in accordance with Article 9.
Customer Data: information associated with your account that we collect, hold and/or use.
Documentation: the user instructions we make available showing how to use the Service.
Fees: the fees you must pay to us for paid services.
Incoming SMS: text messages sent to the virtual numbers we provide.
Normal business hours: 9am to 6pm UK local time, 365 days a year.
Outgoing SMS: text messages sent to mobile devices through us.
Paid service: parts of the service are paid now or perhaps in the future.
Payment Processor: a third party company appointed by us to process payments.
Service credit: the balance allocated to your account from which we deduct fees.
Service: any of our platforms, programs, features, functions, reports, instructions, sample code, help files, technical documentation, portals, technical support, add-ons, upgrades, updates, SDKs, APIs, or software provided via the www.ROOTSMS.com website or other subdomains *.ROOTSMS.com
Support service policy: our policy for providing support in relation to the service.
Virtual number: a telephone number without a directly associated telephone line that forwards incoming messages to our platform.
1.2 The headings of the clauses, schedule and paragraphs shall not affect the interpretation of this Agreement.
1.3 A person includes a natural person, a legal person or an unincorporated body (whether or not having a separate legal personality) and its legal and personal representatives, successors or permitted assigns.
1.4 A reference to a business includes any business, company or other legal entity, wherever it may be and however it may be incorporated or formed.
1.5 Unless the context indicates otherwise, words in the singular number should include the plural and vice versa.
1.6 Unless the context otherwise requires, a reference to one gender shall include a reference to all genders.
1.7 A reference to a law or legal provision is a reference to that law or legal provision as it is in force on the date you register for the Service and shall include all subordinate legislation made under that law or legal provision.
1.8 References to clauses, annexes and paragraphs are to clauses, annexes and paragraphs of this Agreement.
2.1 We will provide the Service to you in accordance with the terms of this Agreement.
(a) In respect of outbound SMS messages, the Service is limited to passing your text messages to our API for delivery to mobile users and then providing you with any metadata that the API returns to us in respect of those messages.
(b) With respect to incoming SMS, the Service is limited to making available to you text messages sent by mobile users to virtual numbers as provided by API KEY.
2.2 We will use commercially reasonable endeavours to make the Service available 24 hours a day, seven days a week, except for scheduled maintenance carried out between 21:00 and 05:00 London time and unscheduled maintenance (provided that we have used reasonable endeavours to avoid it).
2.3 We will provide you with our standard customer support services at no additional charge in accordance with our standard support service policy. You may purchase enhanced support services separately.
2.4 We may change the service in any way at any time and for any reason, including discontinuing various features.
- Customer data
3.1 You have all right, title and interest in all Customer Data and are solely responsible for its legality, reliability, integrity, accuracy and quality.
3.2 In the event of loss or damage to Customer Data, your sole and exclusive remedy shall be for us to use reasonable commercial efforts to restore it from the last backup of such Customer Data. We shall not be liable for any loss, destruction, alteration or disclosure of Customer Data caused by a third party.
3.4 Where applicable, you must ensure that you have the right to transfer customer data to us so that we can lawfully use, process and transfer it in accordance with this Agreement on your behalf.
3.5 Where applicable, you must ensure that relevant third parties have been informed and have given their consent to such use, processing and transfer as required by all applicable data protection legislation.
3.6 We will only process Customer Data in accordance with the terms of this Agreement and any legal instructions reasonably given by you from time to time.
3.7 Each party shall take appropriate technical and organisational measures against unauthorised or unlawful processing of customer data or its accidental loss, destruction or damage.
- Third party suppliers
4.1 We make no representations, warranties or undertakings and shall have no responsibility or liability whatsoever in respect of the content or use of, or correspondence with, any third party service providers, or any transactions entered into, and any contracts entered into by you, with any such third party.
4.2 Any contract entered into and any transaction conducted via a third party website is between you and the relevant third party and not us.
4.4 We do not endorse or approve of any third party website or the content of any third party website, even if made available through the Service.
- Our obligations5.1 We undertake to ensure that the Service operates substantially in accordance with the Documentation and with reasonable skill and care. This does not apply to the extent of any non-compliance caused by use of the Service contrary to our instructions and policies. If the Service does not conform to the foregoing undertaking, we will, at our expense, use commercially reasonable efforts to promptly correct such non-conformity, or provide you with an alternative means of achieving the desired performance. Such correction or substitution shall be your sole and exclusive remedy for any breach of our undertaking in this clause.
Notwithstanding the above, we:
(a) does not warrant that your use of the Service will be uninterrupted or error-free; or that the Service will meet your requirements;
(b) disclaim all express and implied warranties as to the accuracy, completeness, non-infringement, merchantability or fitness for a particular purpose of the Service generally and any content or services contained therein, and all express and implied warranties that the operation of the Service generally and any content or services contained therein will be uninterrupted or error-free.
(c) are not responsible for any delays, failures to deliver or any other loss or damage resulting from the transfer of data over communications networks and facilities, including the Internet, and you acknowledge that the service and materials may be subject to limitations, delays and other problems inherent in the use of such communications facilities.
(d) will not be liable for any inaccuracies, errors or omissions, or for any loss, injury or damage caused in whole or in part by failures, delays or interruptions of the Service generally and any aspect incidental thereto.
(e) monitor the flow of SMS sent by each KEY API and block the sending if, according to our analysis we detect an abusive sending, a human member of our team will be the sole judge of this decision.
(f) indirectly, we are required by law to link a contact to an API KEY, so we reserve the right without notice to block an API KEY if a contact person is not linked to the API KEY
- Your obligations
6.1 Subject to the restrictions set out in this Agreement, you agree to use the Service only for your internal business operations and we reserve the right, without liability or prejudice to our other rights, to disable your access in the event of any breach of this Agreement. The rights granted are granted to you only and shall not be deemed granted to any subsidiary or holding company.
6.2 You are responsible for:
(a) Comply with the terms of this agreement, including the terms of our acceptable use policy.
(b) All activities that occur in connection with your account, including the accuracy, completeness and timeliness of any content submitted.
(c) Handle your account credentials (i.e. login password, API keys, etc.) with care. You must notify us immediately if you have reason to believe that there has been or is likely to be any unauthorised or unauthorised use of your account.
(d) to provide us with all necessary co-operation in relation to this Agreement and any necessary access to information we may require to enforce it.
(e) Comply with all applicable laws and regulations with respect to your activities under this Agreement.
(f) Fulfil all your responsibilities in a timely and efficient manner. In the event of any delay in providing such assistance, we may adjust any agreed timetable or delivery schedule as reasonably necessary.
(g) Ensure that any Authorised User uses the Service in accordance with the terms and conditions of this Agreement and shall be liable for any breach by the Authorised User of this Agreement.
(h) Obtaining and maintaining all necessary licences, consents and authorisations for us, our subcontractors and agents to perform our obligations under this Agreement.
(i) ensure that your network and systems comply with the relevant specifications that we may provide from time to time.
(j) obtaining and maintaining network and telecommunications links from your systems to our data centres and all problems, conditions, delays, delivery failures and any other losses or damages arising from or related to your network or telecommunications links or caused by the Internet.
(k) Not to misuse or abuse the service, this service must be used in a reasonable manner
(l) Not to use this service to send SMS via abusive mailing or repeated actions to the same or different numbers
6.3 You shall use all reasonable endeavours to prevent unauthorised access to or use of the Service and, in the event of such unauthorised access or use, shall promptly notify us.
6.4 You may not exceed the limit of one SMS per second, if the limit is exceeded then your SMS will not be sent. If the limit is exceeded, an error will be returned in the API in response.
- Fees and payment
(a) Our provision of fee-based services is carried out in accordance with the prices set out on our website or otherwise agreed in writing.
(b) Paid services are provided on an unlimited or prepaid subscription basis and you must purchase a subscription or service credit prior to actual use, in the currency we specify, without right to compensation, deductions or counterclaims.
(c) Unused service credit (less associated transaction fees) may be refunded upon request within 14 days of purchase via the corresponding payment method from which it was purchased.
(d) Unused service credit on accounts that engage in actions prohibited by our acceptable use policy will not be refunded.
(e) Unused service credit expires after 365 days from the date of purchase.
(f) We guarantee delivery of outbound SMS messages provided that the destination number/handset (i) is supported by our network (ii) is not blocked by any network operator (iii) is switched on (iv) has sufficient memory (v) is not using an SMS blocker and (vi) is not travelling away from its home network You can request these refunds within 72 hours and we will provide them to you by way of service credit notes applied to your account. For the avoidance of doubt, outbound SMS messages are charged on the basis of message submission and not delivery.
(g) Payments made via Payment Processors are subject to their terms, conditions and privacy policies in addition to ours. We are not responsible for any errors they may make.
(h) You may choose to automate the purchase of service credit whenever your balance falls below a minimum threshold you define. Your use of this feature represents your authorization for purchases to be made on your behalf. Please ensure that your billing information is kept current, complete and accurate to ensure that such purchases can be made.
(i) Any free trial or promotion giving access to a paid service must only be used within the specified period.
(j) We reserve the right to change our prices from time to time. We will only send you a courtesy email if your usage over the last 3 months indicates that you will be affected by such changes. Your continued use of the Service after a price change constitutes your agreement to pay the changed amount.
(k) All prices are exclusive of value added tax or tax included according to the web page, which we will add according to the appropriate tariffs.
- Property rights
8.1 You acknowledge and agree that we and/or our licensors own all intellectual property rights in the Service. Except as expressly stated herein, this Agreement does not grant you any rights in, under or by virtue of any patents, copyrights, database rights, trade secrets, trade names, trademarks (whether registered or not), or any other rights or licenses in respect of the Service.
8.2 We confirm that we have all the rights in relation to the Service that are necessary to grant all the rights we purport to grant under and in accordance with the terms of this Agreement.
9.1 Each party may have access to the other party's Confidential Information in order to fulfil its obligations under this Agreement. A Party's Confidential Information shall not be deemed to include information which:
- (a) is or becomes publicly known otherwise than by an act or omission of the receiving party
- (b) was in the lawful possession of the other party prior to the disclosure;
(c) is lawfully disclosed to the receiving party by a third party without restriction on disclosure; or
- (d) is independently developed by the receiving party, such independent development to be demonstrated by written evidence.
9.2 Each party will keep the other's confidential information confidential and will not make the other's confidential information available to any third party, nor will it use the other's confidential information for any purpose other than the implementation of this Agreement.
9.3 Each party shall take all reasonable steps to ensure that Confidential Information of the other to which it has access is not disclosed or distributed by its employees or agents in breach of the terms of this Agreement.
9.4 A party may disclose confidential information to the extent that such confidential information is required to be disclosed by law, by a governmental or other regulatory authority or by a court or other competent authority.
9.5 Neither party shall be liable for any loss, destruction, alteration or disclosure of confidential information caused by a third party.
9.6 You acknowledge that the details of the Service and the results of any tests of the performance of the Service constitute our Confidential Information.
9.7 You grant us the right to use and display your name, logo and other non-confidential information on our website and other promotional materials. Such use must be in accordance with your applicable usage guidelines.
9.8 The above provisions of this clause shall survive the termination of this Agreement, irrespective of the consequence thereof.
10.1 You shall defend, indemnify and hold us (and our affiliates, agents, contractors and subcontractors) harmless from and against any and all claims, actions, proceedings, losses, damages, expenses and costs (including, without limitation, reasonable legal fees and costs) arising out of or in connection with your use of the Service, provided that:
(a) you are promptly notified of any such claim;
(b) we provide you with reasonable co-operation in the defence and settlement of any such claim, at your expense;
(c) you have exclusive authority to defend or settle the claim.
10.2 We will defend you, your officers, directors, employees, affiliates and service providers against any claim that the Service infringes any patent, copyright, trademark, database right or right of privacy in the United Kingdom and will indemnify you for any amount awarded against you. in the adjudication or settlement of such claims, provided that:
(a) we are promptly notified of any such claim;
(b) you provide us with reasonable co-operation in the defence and settlement of any such claim, at our expense;
(c) we have exclusive authority to defend or settle the claim.
10.3 In defending or settling any claim, we may grant you the right to continue to use the Service, to replace or modify the Service so that it does not become infringing or, if such remedies are not reasonably available, to terminate this Agreement on 2 Business Days' notice without any further liability or obligation to pay you damages or other additional costs.
10.4 In no event will we, our employees, agents or subcontractors be liable to you to the extent that the alleged infringement is based on:
(a) a change to the Service by anyone other than us; or
(b) your use of the Service in a manner contrary to the instructions we have given you; or
(c) your use of the Service after notification of the alleged or actual breach by us or any appropriate authority; or
(d) your use of the Service in a manner contrary to the Acceptable Use Policy;
10.5 The foregoing clauses set out your sole and exclusive rights and remedies and our obligations and liabilities (including those of our employees, agents and sub-contractors) for infringement of any patent, copyright, trade mark, database right or right of confidentiality.
- Limitation of Liability11.1 Except as expressly and specifically provided in this Agreement:(a) you assume full responsibility for any results obtained from your use of the Service and for any conclusions drawn from such use. We shall not be liable for any damages caused by errors or omissions in any information, instructions or scripts provided by you in connection with the Service, or any action taken by us at your request;
(b) all warranties, representations, conditions and other terms of any kind implied by statute or common law are, to the fullest extent permitted by applicable law, excluded from this Agreement;
(c) the Service is provided to you "as is".
(d) we are not responsible for SMS messages sent unintentionally without or with the sending tests
(e) the ROOTSMS service disclaims all liability for SMS messages sent via the API KEY from or outside the *.rootsms.com website, the content sent or the purpose of the content or the nature of the content or any other element of the content of the SMS message sent is the sole responsibility of the contact linked to the API KEY
(f) if no contact is linked to an API KEY, the contact responsible for the API key will automatically be the basic contact who created the general account.
11.2 Nothing in this agreement excludes our liability:
(a) for death or injury caused by our negligence; or
(b) for fraud or fraudulent misrepresentation.
11.3 Subject to Articles 11.1 and 11.2:
(a) we shall not be liable whether in tort (including negligence or breach of statutory duty), contract, misrepresentation, restitution or otherwise for any loss of profits, loss of business, depletion of goodwill and/or similar loss or loss or corruption of data or information, or pure economic loss, or for any special, indirect or consequential loss, costs, damages, charges or expenses arising out of this agreement;
(b) our total aggregate liability in contract (including in respect of the indemnity in clause 10.2), tort (including negligence or breach of statutory duty), misrepresentation, restitution or otherwise, arising out of the performance or intended performance of this Agreement shall be limited to the amount you have spent on the Paid Services in the month immediately preceding the date of the first claim
11.4 You acknowledge that:
(a) Our ability to provide the Service is subject to the limitations imposed on us by API KEY and we act only as a conduit. Our responsibility is limited to storing messages and transmitting them accordingly.
(b) Text messages are transmitted unencrypted and eavesdropping by third parties is possible.
11.5 We hereby agree that the content of all SMS messages shall be deemed to be of no value.
12. Duration and termination
12.1 This Agreement shall commence when you register to use the Service and shall continue indefinitely unless otherwise terminated in accordance with the terms of this Agreement.
12.2 Without affecting any other right or remedy available to it, either party may terminate this Agreement with immediate effect if:
(a) the other party commits a material breach of any term of this Agreement which is irremediable or (if such breach is curable) fails to remedy such breach within 14 days of being notified in writing to do so;
(b) the other Party is in breach of any of the terms of this Agreement in such a way as to reasonably justify the view that its conduct is inconsistent with its intention or ability to give effect to the terms of this Agreement;
(c) the other party suspends or threatens to suspend payment of its debts or is unable to pay its debts as they fall due or admits its inability to pay its debts or is deemed to be unable to pay its debts within the meaning of section 123 of the Insolvency Act 1986;
(d) the other party enters into negotiations with any class of its creditors with a view to rescheduling its debts, or makes a proposal or enters into a compromise or arrangement with its creditors other than for the sole purpose of a solvent amalgamation scheme of that other party with one or more other companies or a solvent reconstruction of that other party;
(e) a petition is filed, notice is given, a resolution is passed or an order is made, for or in connection with the winding up of that other party, except for the sole purpose of a solvent amalgamation scheme of that other party with one or more other companies or the solvent reconstruction of that other party
(f) an application is made to the court, or an order is made, for the appointment of an administrator, or if a notice of intention to appoint an administrator is given, or if an administrator is appointed, over the other party;
(g) the holder of a qualifying floating charge over the assets of that other party has the right to appoint or has appointed an administrative receiver;
(h) a person becomes entitled to appoint a receiver over the assets of the other party or a receiver is appointed over the assets of the other party;
(i) a creditor or pledgor of the other party seizes or takes possession of, or a distress, execution, sequestration or other such process is levied or enforced or continued against, all or any part of the assets of the other party and such seizure or process is not discharged within 30 days
12.3 Upon termination of this Agreement for any reason:
(a) all licenses granted under this Agreement shall immediately terminate and you shall immediately cease all use of the Service;
(b) we may destroy or otherwise dispose of your Data in our possession unless we receive, no later than ten days after the effective date of termination of this Agreement, a written request for delivery of the Data. If received, we will then use reasonable commercial efforts to provide the Data to you within 30 days, provided that you have paid all outstanding fees and charges at termination and arising from the termination (whether or not due at the date of termination). You shall also pay all reasonable expenses incurred by us in returning the Customer Data;
(d) the rights, remedies, obligations or liabilities of the parties which have accrued to the date of termination, including the right to claim damages for any breach of the Agreement which existed on or before the date of termination, shall not be affected or impaired.
- Force majeure
We shall have no liability to you under this Agreement if we are prevented or delayed from performing our obligations under this Agreement by acts, events, omissions or accidents beyond our reasonable control, including, without limitation, strikes, lockouts or other industrial disputes (whether or not involving our workforce), failure of any utility, transport or telecommunications system, act of God, war, riot, civil commotion, malicious damage, compliance with any law or governmental order, rule, regulation or directive, accident, breakdown of plant or machinery, fire, flood, storm or failure of suppliers or sub-contractors.
In case of inconsistency between any of the provisions of the main body of this agreement and other policies referenced by this agreement, the provisions of the main body of this agreement shall prevail.
No amendment to this agreement shall be effective unless it is in writing and signed by the parties.
No failure or delay by a Party in exercising any right or remedy provided by this Agreement or by law shall constitute a waiver of that or any other right or remedy, nor shall it prevent or restrict the further exercise of that or any other right or remedy. . No single or partial exercise of this right or remedy shall preclude or restrict the further exercise of this or any other right or remedy.
- Rights and remedies
Except as expressly provided in this Agreement, the rights and remedies provided in this Agreement are in addition to and not exclusive of any rights or remedies provided by law.
18.1 If any provision (or part of a provision) of this Agreement is held by a court or administrative body of competent jurisdiction to be invalid, unenforceable or illegal, the remaining provisions shall remain in force.
18.2 If an invalid, unenforceable or illegal provision would be valid, enforceable or legal if any part of it were deleted, the provision shall apply with any modification necessary to give effect to the commercial intent of the parties.
- The entire agreement
19.1 This Agreement constitutes the entire agreement between the parties and supersedes and extinguishes all prior agreements, promises, assurances, warranties, representations and understandings between them, whether written or oral, relating to its subject matter.
19.2 Each party acknowledges that in entering into this Agreement it is not relying on and will have no recourse to any statement, representation, assurance or warranty not set out in this Agreement.
19.3 Each party agrees that it shall have no claim for innocent or negligent misrepresentation based on any statement in this Agreement.
19.4 Nothing in this clause limits or excludes any liability for fraud.
20.1 You shall not, without our prior written consent, assign, transfer, charge, sub-contract or otherwise deal with any of your rights or obligations under this Agreement.
20.2 We may at any time assign, transfer, charge, sub-contract or otherwise deal with any or all of your rights or obligations under this Agreement.
- No partnership or agency
Nothing in this Agreement is intended or shall operate to create a partnership between the parties, or to authorise either party to act as agent for the other and neither party shall have any authority to act for or on behalf of or otherwise bind the other in any way (including, without limitation, the making of any representation or warranty, the assumption of any obligation or liability and the exercise of any right or power).
- Third party rights
This Agreement does not confer any rights on any person or party (other than the parties to this Agreement and, where applicable, their successors and permitted assigns) under the Contracts (Rights of Third Parties) Act 1999.
23.1 Any notice to be given under this Agreement shall be in writing, sent by email or by prepaid first class mail or by registered mail to the other party at its address.
23.2 A properly addressed notice sent by prepaid first class mail or registered mail shall be deemed to have been received at the time it would have been delivered in the ordinary course of mail. A notice sent by e-mail shall be deemed to have been received at 9:00 a.m. on the first business day after it is sent.
- Applicable law
This Agreement and any dispute or claim arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims) shall be governed by and construed in accordance with the laws of England and Wales.
Each party irrevocably agrees that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim arising out of or in connection with this Agreement or its subject matter or formation (including non-contractual disputes or claims).