Terms and conditions
With effect from: 25 May 2018 (previous version)
Zensend is a Service provided and operated by Fonix Mobile Limited ("Zensend", “Fonix”, “We”, “Us”, “Site”, “Service”). This agreement relates to all Services provided by Zensend and related Sites to the client ("You").
Fonix Mobile Limited is registered in England and Wales under company number 5836806 with registered offices at 23 Heddon Street, London W1B 4BQ.
Zensend reserves the right to change these Terms from time to time. Any updates to these Terms shall be posted on the website. You acknowledge your responsibility to review these Terms from time to time and to be aware of any such changes. By continuing to use any of the Zensend Sites or Services after we post any such changes, you accept these Terms, as modified.
If you do not agree with these Terms you must not use the Site or Services and should discontinue use immediately. Your continued access to the Site and/or Services, as described in this Agreement, signifies your acceptance of the Terms.
Please note that these Terms and Conditions, may be changed from time to time and all changes will be notified to you as a Client and can be found at http://www.zensend.io/terms_and_conditions.
2. The Services
The Services mentioned in these Terms include all products and Services provided and described on the Zensend Sites. These services may or may not be available in all countries or regions of the world and may be approved or cleared by a government regulatory body for sale or use with different indications and restrictions in different countries.
You agree to use the Zensend Services in accordance with all applicable guidelines as well as all national and international laws that the Services are subject to at all times. To the extent there are changes in the law that affect these Terms of Service, the changes in the law shall control and you shall be responsible for abiding by such changes.
The Services provided to you under this Agreement include but are not limited to the following:
- Web-based interface
- Access to incoming SMS number or keywords
- SMS messaging applications and APIs
- SMS gateway connectivity access
- MSISDN (mobile number) look-ups
- Data encryption, data transmission, data access, data storage
- Reporting and analytics, and, if applicable, synchronisation software, as well as software maintenance and upgrades and customer support, that enable you to send text messages to recipients designated by you
(collectively, the "Services").
Zensend only provides that the Services are processed correctly and further transmitted by Zensend to the applicable networks. Zensend shall use commercially reasonable efforts to transmit your messages to the applicable network for final delivery to your designated recipients. Zensend is not liable for any loss incurred by the failure of a message to be delivered, and you acknowledge that damages for financial or other loss resulting from delivery failure cannot be claimed from Zensend for any such non-deliveries. Furthermore, you agree that message contents are deemed to have zero value.
3. Usage Policy
You warrant that by accessing these Sites and/or the Services you have legal capacity to do so, have read, understood and are bound to these Terms.
You represent and warrant that the owners of the phone numbers you initiate messages to through the Services and your use of the Site and/or Services complies with all applicable laws and have consented or otherwise opted-in to the receipt of such messages as required by any applicable law or regulation. You agree that you will include clear opt-out/unsubscribe information on your messages when required to do so by any applicable law or regulation.
It is your sole responsibility to ensure that your use of the Site and Services complies with all applicable laws. We will not be responsible and/or liable for any non-compliance of Services.
You agree to familiarise yourself with and abide by all applicable local, state, national and international laws and regulations and are solely responsible for all acts or omissions that occur under your account, including without limitation the content of the messages that you create and initiate through Zensend.
Zensend is, under no circumstances, responsible for the contents and/or accuracy of your messages and will only transmit them on a basis of good faith that you use the Services in accordance with these Terms. Zensend is not liable for any misuse of the Services by you and we reserve the right to monitor messages to ensure compliance with our policies.
4. Content Provided
You agree that any content that you upload to our Site will not be considered confidential or proprietary. By providing such content to Zensend you grant to Zensend an unrestricted, irrevocable, worldwide, royalty-free, perpetual license to use, reproduce, display, publicly perform, distribute, transmit, edit and reformat your Content in order to provide the Services.
In connection with such information and materials, you warrant and represent to Zensend that you have all rights, title and interests necessary to provide such content to Zensend, and that your provision of the content to Zensend shall not infringe any third party's proprietary or personal rights, including but not limited to any trademark, copyright, patent, or trade secret.
Zensend reserve the right at our sole discretion to remove, screen or edit without notice any Content at any time for any reason. By using the Service you also agree not to process any Content through the Service that is offensive, threatening, promotes violence, promotes any illegal activity, is obscene, defaming, pornographic, or otherwise harmful, represents unauthorised copies or distributions of copyrighted work or other intellectual property or is otherwise objectionable in Zensend’s sole discretion.
Zensend shall also have no responsibility or liability for any content created or posted by you or other third parties within any online forum.
5. Username & Password
Zensend will allow you to create a username and password and you may be given a cryptographic key as part of the registration process. Zensend require you to provide accurate, complete, and regularly updated member profile information. You agree to notify Zensend of any known or suspected unauthorised use(s) of your user account, or any known or suspected breach of security, including loss, theft, or unauthorised disclosure of your username, password or cryptographic key. You shall be responsible for maintaining the confidentiality of your password and cryptographic key.
Zensend reserves the right to suspend or terminate any user account should any fraudulent, abusive, or otherwise illegal activity be discovered on your account. Any action taken will be at Zensend’s sole discretion, and you may be reported to appropriate law-enforcement agencies.
Zensend reserves the right to contact you via email, telephone or text message to provide information to you about your account.
6. Intellectual Property
Zensend, Fonix, Fonix Mobile and all logos and all other trademarks, service marks, graphics used in connection with the Services are the property of Fonix Mobile Limited.
All copyrights, trademarks, patents, trade secrets and other intellectual property rights contained in the Site are the sole property of Fonix Mobile Limited, or its licensors, each of whom reserves all rights with regard to such materials. No marks may be copied, imitated or used, in whole or in part, without prior written consent or the consent of the applicable trademark holder.
Our status (and that of any identified contributors) as the author of content on our Site must always be acknowledged.
7. Data Protection & Privacy
In this Clause, the following terms shall have the following meanings:
"controller", "processor", "data subject", "personal data", "processing" (and "process") and "special categories of personal data" shall have the meanings given in Applicable Data Protection Law; and "Applicable Data Protection Law" shall mean: (i) prior to 25 May 2018, the EU Data Protection Directive (Directive 95/46/EC); and (ii) on and after 25 May 2018, the EU General Data Protection Regulation (Regulation 2016/679).
You (the controller) appoint Zensend as a processor to process the personal data described in these Terms (the "Data") for the purposes described, and the terms set out, in these Terms, including, for the avoidance of doubt, to provide you with, and update and improve, our services (or as otherwise agreed in writing by the parties) (the “Permitted Purpose”). Each party shall comply with the obligations that apply to it under Applicable Data Protection Law.
Unless explicitly requested by Zensend to do so, you shall not disclose (and shall not permit any data subject to disclose) any special categories of personal data to Zensend for processing.
Zensend shall not transfer the Data outside of the European Economic Area ("EEA") unless it has taken such measures as are necessary to ensure the transfer is in compliance with Applicable Data Protection Law. Such measures may include (without limitation) transferring the Data to a recipient in a country that the European Commission has decided provides adequate protection for personal data, to a recipient in the United States that has certified its compliance with the EU-US Privacy Shield, or to a recipient that has executed standard contractual clauses adopted or approved by the European Commission.
Zensend shall ensure that any person it authorises to process the Data (an "Authorised Person") shall protect the Data in accordance with Zensend’s confidentiality obligations under these Terms.
Zensend shall implement technical and organisational measures to protect the Data (i) from accidental or unlawful destruction, and (ii) loss, alteration, unauthorised disclosure of, or access to the Data (a "Security Incident").
You consent to Zensend engaging third party subprocessors to process the Data for the Permitted Purpose provided that: (i) Zensend maintains an up-to-date list of its subprocessors, which shall be available on its website on or before 25 May 2018, which it shall update with details of any change in subprocessors at least 30 days prior to the change; (ii) Zensend imposes data protection terms on any subprocessor it appoints that require it to protect the Data to the standard required by Applicable Data Protection Law; and (iii) Zensend remains liable for any breach of this Clause that is caused by an act, error or omission of its subprocessor. You may object to Zensend’s appointment or replacement of a subprocessor prior to its appointment or replacement, provided such objection is based on reasonable grounds relating to data protection. In such event, Zensend will either not appoint or replace the subprocessor or, if this is not reasonably possible in Zensend’s sole discretion, you may suspend or terminate the Service and these Terms (without prejudice to any fees incurred by you up to and including the date of suspension or termination).
Zensend shall provide reasonable and timely assistance to you (at your expense) to enable you to respond to: (i) any request from a data subject to exercise any of its rights under Applicable Data Protection Law; and (ii) any other correspondence, enquiry or complaint received from a data subject, regulator or other third party in connection with the processing of the Data. In the event that any such request, correspondence, enquiry or complaint is made directly to Zensend, Zensend shall promptly inform you providing full details of the same.
If Zensend believes or becomes aware that its processing of the Data is likely to result in a high risk to the data protection rights and freedoms of data subjects, it shall inform you and provide reasonable cooperation to you in connection with any data protection impact assessment that may be required under Applicable Data Protection Law.
If it becomes aware of a confirmed Security Incident, Zensend shall inform you without undue delay and shall provide reasonable information and cooperation to you so that you can fulfil any data breach reporting obligations you may have under (and in accordance with the timescales required by) Applicable Data Protection Law. Zensend shall further take reasonably necessary measures and actions to remedy or mitigate the effects of the Security Incident and keep you informed of all material developments in connection with the Security Incident.
Upon termination or expiry of these Terms, Zensend will, on your explicit request, delete or return the Data in its possession or control (in a manner and form decided by Zensend, acting reasonably). This requirement shall not apply to the extent that Zensend is required by applicable law to retain some or all of the Data, or to Data it has archived on back-up systems, which Data Zensend shall securely isolate and protect from any further processing.
Zensend shall on reasonable prior notice and at your expense and subject to the confidentiality obligations set out in these Terms, submit to audits and inspections and provide information reasonably required in order to assess and verify compliance with the provisions of this Clause and the requirements of the Applicable Data Protection Law.
Zensend set out the prices payable by you for the Services that it provides through the Site. You agree to pay for all the fees required in full for the provision of the Services requested by you, as described on the Site. All charges described are exclusive of value added tax (“VAT”).
You will be liable and will reimburse Zensend for all sales, VAT or other taxes imposed in connection with or arising from the provision of Services. In the event of non-payment, regardless of whether Services have already been supplied by Zensend, we shall be entitled to recover any and all costs, fees and expenses of such collection efforts, including but not limited to legal fees incurred in the pursuits of collection of fees due and payable under these Terms.
Zensend reserves the right to change its pricing at any time without notice. All changes to pricing will be shown and displayed on the Site. The fee payable by you for the Services shall be based on the pricing on the Site at the time that you submit an order for Services. The fee for the Service may have changed from the fee displayed on the Site at the time you purchased the relevant credit. You are responsible for reviewing the pricing on the Site and regularly checking any information regarding to changes in the pricing.
Zensend may offer free credits to new qualified users on the Site. Terms of such free credits are available on the Site. Zensend reserves the right to refuse or withdraw free credits from users accounts at its sole discretion. You may not request more than one free trial and any attempts of multiple trials will be rejected and the applicable fees will be levied for the Services requested.
Upon sign up, new qualified users may be allocated and credited a specified balance to their account for testing purposes. Restrictions to such free credits are provided on the Site. On expiration of your free credit, you will be required to pay the applicable fees to continue using the Services. Payment shall be made choosing your payment method, submitting your payment information and enabling where relevant, auto-top ups of your account.
Zensend reserves the right to limit the amount of services you may be allowed to buy from us per month. This limit may vary without notice. All changes to such a limit will be shown and displayed on the Site. You are responsible for reviewing the limit on the Site and regularly checking any information regarding to changes of the limit.
9. Disclaimer & Limitation of Liability
The Site and Services are provided on an AS IS and AS AVAILABLE basis. To the extent permitted by law.
Zensend reserves the right to change, suspend, or discontinue offering of any of the Zensend Sites or Services at any time for any reason without prior notice. To the extent permitted by law, we exclude all warranties conditions, representations or other terms of any kind which may apply to our Site including that the Site and/or Services are suitable for your intended use, error-free, fault-free, reliable, timely, entirely secure, virus free or available. While Zensend utilises electronic and physical security to reduce the risk of improper access to or manipulation of data during transmission and storage, it cannot guarantee the security or integrity of the data and shall have no liability for breaches of security or integrity or third-party interception in transit, nor for any damage which may result to your computer or other property by your use of the Zensend Sites or Services.
You acknowledge that text messages are transmitted unencrypted and that eavesdropping of communications by third parties may be possible. Zensend recommends that you ensure sensitive and valuable information is communicated by a protected and/or encrypted method. We make no guarantees as to the outcomes or results in using the Site or Services.
Zensend makes no warranty or guarantee that (i) the Services will be available at any particular time; or (ii) you will be able to access the Services at any particular time or from any particular location. Zensend will not be liable for any act or omission of any other company or companies furnishing a portion of the Services (including, without limitation mobile communications carriers or ISPs), or from any act or omission of a third party, including those vendors participating in Zensend offerings made to you, or for equipment that it does not furnish, or for damages that result from the operation of client-provided systems, equipment, facilities or services that are interconnected with the Service.
Zensend do all that we can to keep any disruption to a minimum. However, from time to time it may be required to carry out maintenance as appropriate.
NOTWITHSTANDING ANYTHING CONTAINED HEREIN TO THE CONTRARY, THE ZENSEND SITES AND SERVICES ARE PROVIDED WITHOUT ANY WARRANTIES OR CONDITIONS WHATSOEVER, EXPRESSED OR IMPLIED. NOTWITHSTANDING THE FOREGOING OR ANY STATEMENT TO THE CONTRARY CONTAINED IN THESE TERMS, ZENSEND DOES NOT WARRANT THAT THE USE OF THE ZENSEND SITES OR SERVICES WILL BE UNINTERRUPTED OR ERROR FREE, INCLUDING, BUT NOT LIMITED TO ANY INTERRUPTIONS TO THE SERVICES CAUSED BY THE INTENTIONAL AND/OR MALICIOUS ACTS OF THIRD PARTIES (E.G., "HACKING") NOR SHALL ZENSEND BE RESPONSIBLE FOR ANY DATA LOSS OR LOSS OF ANY INFORMATION IN YOUR ACCOUNT, REGARDLESS OF THE CAUSE. FURTHERMORE, ZENSEND MAKES NO REPRESENTATIONS OR WARRANTIES AS TO THE RESULTS THAT MAY BE OBTAINED FROM USE OF THE SERVICES OR THAT THE ZENSEND SITES OR SERVICES WILL MEET ANY OF YOUR SPECIFIC REQUIREMENTS OTHER THAN AS MAY BE EXPRESSLY SET FORTH IN THESE TERMS. ZENSEND MAKES NO REPRESENTATIONS OR WARRANTIES AND HEREBY DISCLAIMS ALL OTHER REPRESENTATIONS AND WARRANTIES OF ANY KIND, WHETHER EXPRESS, STATUTORY OR IMPLIED, ORAL OR WRITTEN, WITH RESPECT TO THE SERVICES, INCLUDING WITHOUT LIMITATION ALL IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, ACCURACY, RELIABILITY, COMPLETENESS, OR TIMELINESS OF THE MATERIAL, SERVICE, SOFTWARE, TEXT, GRAPHICS OR LINKS, AND ALL WARRANTIES IMPLIED FROM ANY COURSE OF DEALING, COURSE OF PERFORMANCE OR USAGE OF TRADE. ZENSEND SHALL NOT BE LIABLE TO YOU OR TO ANY THIRD PARTY FOR ANY INDIRECT, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES (INCLUDING, WITHOUT LIMITATION, ANY DAMAGES ARISING FROM LOSS OF USE OR LOST BUSINESS, LOSS OF OPPORTUNITY, LOSS OF REVENUE, LOSS OF ACTUAL OR ANTICIPATED PROFITS, LOSS OF DAMAGE TO OR CORRUPTION OF DATA OR LOSS OF GOODWILL), OR FOR ANY COST OF PROCUREMENT OF SUBSTITUTE SERVICES ARISING IN CONNECTION WITH THESE TERMS, WHETHER IN AN ACTION IN CONTRACT, TORT, STRICT LIABILITY OR NEGLIGENCE, OR OTHER ACTIONS, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IF YOUR USE OF THE ZENSEND SITES OR SERVICES RESULTS IN THE NEED FOR SERVICING OR REPLACING EQUIPMENT, SOFTWARE, OR DATA, ZENSEND IS NOT RESPONSIBLE FOR THOSE COSTS. ZENSEND'S TOTAL LIABILITY ARISING OUT OF YOUR USE OF THE ZENSEND SITES OR SERVICES FOR DIRECT DAMAGES SHALL NOT, IN THE AGGREGATE, EXCEED AN AMOUNT EQUAL TO THE MONTHLY TRANSACTION FEE PAID BY YOU TO ZENSEND HEREUNDER.
You agree to defend and indemnify Zensend from and against any claim, causes of action, demands, recoveries, losses, damages, fines, penalties or other costs or expenses of any kind or nature including but not limited to reasonable legal and accounting fees, that arise from or relate to your use or misuse of, or access to the Site and/or Services or otherwise from your violation of those Terms or infringements by you, or any third party using your account, of any intellectual property or other right of any person or entity.
10. Modifications and Terminations
Zensend reserve the right to modify these Terms at any time in our sole discretion. We reserve the right to suspend, change or terminate any part, aspect, feature or functionality of the Site or Services at any time without notice. We will deem continued use of the Site or Service as acceptance of the Terms and any updates to those Terms and pricing.
We reserve the right at our sole discretion to suspend or terminate your use of the Sites or Services if at any time for any reason you breach these Terms. Your obligation to pay any fees or charges incurred and owed by you shall survive termination or suspension of the Site or Services. Upon termination, for any reason, you agree to immediately cease using the Services and we shall have no obligation to you after any termination.
Should such a termination due to breach of these Terms take place when you still have credits in your account, you may receive back, at our discretion, a fair monetary value of such credits, save any expenses that may be incurred by Zensend, including, without limitation, for payment of transfer duties, legal costs, third-party costs, or penalties.
If you do not use the Services for a continuous period 24 months, Zensend reserve the right to suspend and terminate the use of your account and will not be under any obligation to restore any access to the Site or Services nor shall be under any further obligation to pay back a fair monetary value of any unused credits or to provide a copy of any information contained in the account.
The provisions regarding ownership, payments, warranties, and indemnifications will survive any suspension, termination, or cancellation of your use of the Services or Zensend Sites.
If you do not fund your account in addition to the free credit provided within 14 days of account creation, Zensend reserve the right to close the account. Zensend will not be under any obligation to restore any access to the Site or Services nor provide a copy of any information contained in the account.
11. Third Party Sites
The Zensend Sites and Services may contain links to websites which we do not control and which are operated by third parties.
Zensend is not responsible for the content on third party sites and you agree that we are not liable, directly or indirectly, for any damages or loss caused by or connection with the use of or reliance on any such content, goods or services available on our through such website.
Zensend reserves the right to revoke this consent to link at any time in its sole discretion, without notice.
12. Security Rules
Zensend prohibits any violation or attempting to violate the security of the Zensend Sites and Services and from using the Zensend Sites and Services to violate the security of other websites by any method, including, without limitation: (a) accessing data not intended for you or logging into a server or account which you are not authorised to access; (b) attempting to probe, scan or test the vulnerability of a system or network or to breach security or authentication measurers without proper authorisation; (c) attempting to interfere with service to any user of the Zensend Sites or Services, host or network, including, without limitation, via means of submitting a virus to the Zensend Sites, overloading, "flooding," "spamming," "mailbombing," or "crashing"; (d) sending unsolicited e-mail, including promotions and/or advertising of products or services; or (e) forging any Zensend packet header or any part of the header information in any e-mail, instant message, text message or newsgroup posting. Violations of system or network security may result in civil or criminal liability. Zensend may investigate violations of these Terms, and may involve and cooperate with law enforcement authorities in prosecuting users of the Zensend Sites who are involved in such violations.
13. Force Majeure
Zensend shall not be liable for any failure or delay in performing its obligations hereunder, where such failure or delay is caused by fire, flood, earthquake, elements of nature or acts of God, acts of war, insurrection, terrorism, strike, failure or downtime of any telecommunications line and/or unavailability of any telecommunications or Internet facilities, power failure, governmental restrictions, any court order, compliance with any law, regulation, or order of any governmental authority, or any other cause beyond the reasonable control of Zensend. In addition, Zensend shall be so excused in the event it is unable to acquire from its usual sources, and on terms it deems to be reasonable, any material necessary for the performance of the Services.
14. Choice of Law and Jurisdiction
These Terms shall be governed by and construed in accordance with the laws of England and Wales and the parties hereby submit to the exclusive jurisdiction of the English courts. These Terms are only those stated herein, which shall constitute the complete agreement between the parties. No terms and conditions stated in or attached to your communications to Zensend are applicable to these Terms in any way and are not to be considered your exceptions to the provisions of these Terms.
The failure of either party to exercise in any respect any right provided for herein will not be deemed a waiver of any further rights hereunder. If any provision of these Terms is found to be unenforceable or invalid, that provision will be limited or eliminated to the minimum extent necessary so that these Terms will otherwise remain in full force and effect and enforceable. No agency, partnership, joint venture, or employment is created as a result of these Terms and you do not have any authority of any kind to bind Zensend in any respect whatsoever. In any action or proceeding to enforce rights under these Terms, Zensend will be entitled to recover costs and attorneys' fees if it substantially prevails.