Terms
Messaging Services Terms V1.0
Terms
Messaging Services Terms V1.0
Terms
Messaging Services Terms V1.0
Messaging Services Terms V1.0
DEFINITIONS
1.1 Aside from the terms in this Pebble Messaging Service Agreement in bold, other capitalised terms shall have the following meanings:
“Calendar Month” means, in relation to each month within a year, the period from the first day of that month until the last day of that month.
“Data Protection Laws” means any data protection, privacy, direct marketing or similar laws that apply to Personal Data Processed in connection with the Pebble Messaging Service Agreement, and “Controller”, “Personal Data”, “Processing” and “Processor” shall be as defined under Data Protection Laws.
“Fees”means any fees paid in relation to this Pebble Messaging Service Agreement (including the Monthly Fees and Additional Service Credit Fees).
“Service Agreement“ Under the Pebble Messaging Service Agreement, Pebble shall allow the Provider to send SMS and WhatsApp messages via the Pebble Platform to care seekers (“Pebble Messaging Services”). In order to provide the Pebble Messaging Services, Pebble shall integrate the Pebble Services with certain third-party messaging platforms (such as WhatsApp and Twilio) (“Third-party Messaging Platforms”).
“Payment Method” means a current, valid and accepted method of payment (which Pebble is permitted to accept or reject, acting in its sole discretion).
“Payment Terms” Pebble will invoice the Provider, in relation to the Pebble Messaging Services in each Calendar Month, on the first date of the proceeding Calendar Month. Each invoice issued by Pebble under this Pebble Messaging Services Agreement shall be due and payable within thirty (30) days from the date of receipt by the Provider.
“Pebble DPA” means the data processing addendum which governs the processing activities which relate to this Pebble Messaging Service Agreement, which can be accessed here.
“Pebble Messaging Services IPR” means any intellectual property rights which may come into the possession of the Provider from time to time (including intellectual property rights owned by Third-party Messaging Platforms), in order to receive the Pebble Messaging Services under this Pebble Service Agreement.
“Pebble Service Agreement” means the agreement entered into between Pebble and the Provider for the purpose of Provider using Pebble Services.
“Provider Materials” means any other intellectual property rights, information and materials provided by the Provider to Pebble.
“Term” means the period commencing on the Effective Date and ending on the date on which this Pebble Messaging Service Agreement is terminated in accordance with clause 7.
“Third-party Messaging Platform Terms” means terms, published by Third-party Messaging Platforms, in relation to the Pebble Messaging Services.
1.2 In this Pebble Messaging Service Agreement, unless the context otherwise so requires, “including” means “including, without limitation”.
1.3 In the event that there is any conflict between the terms of the Order Form, Messaging T&Cs, the Pebble DPA and the Pebble Service Agreement, the order of priority will (unless otherwise expressly stated in such documentation) be as follows:
1.3.1 the Order Form;
1.3.2 the Pebble Messaging T&Cs;
1.3.3 the Pebble DPA; and
1.3.4 the Pebble Service Agreement.
PROVIDER OBLIGATIONS
2.1 In order to receive the Pebble Messaging Services:
2.1.1 the Pebble Service Agreement must be valid and subsisting and, during the Term, the Provider must comply with the terms of the Pebble Service Agreement (to the extent relevant and applicable to the Pebble Messaging Services);
2.1.2 the Provider must complete certain onboarding activities, as notified to the Provider by Pebble;
2.1.3 the Provider must comply with the Third-party Messaging Platform Terms; and
2.1.4 the Provider must provide Pebble with any assistance, Provider Materials and information that Pebble reasonably requires to provide the Pebble Messaging Services.
SERVICES
3.1 Subject to the Provider’s compliance with its obligations under clause 2, Pebble shall provide the Pebble Messaging Services to the Provider during the Term.
3.2 The Provider hereby acknowledges that:
3.2.1 the Third-party Messaging Platforms are not being operated or provided by Pebble;
3.2.2 Pebble will not be liable for any losses suffered by the Provider if Pebble’s performance of its obligations under this Pebble Messaging Service Agreement is prevented or delayed by an act of omission of the Provider or any care seeker.
3.2.3 its information (including personal data and non-personal data) may be transferred to and processed by the Third-party Messaging Platform, and acknowledges that the Provider is responsible for configuring the interoperability of the Pebble Services with Third-party Messaging Platforms (to the extent any such actions are required outside of the Pebble Messaging Services); and
3.2.4 Pebble does not guarantee the continued availability or performance of the Third-party Messaging Platforms, or the continued interoperability of the Third-party Messaging Platform with the Pebble Services.
INTELLECTUAL PROPERTY
4.1 During the Term, the Provider hereby grants to Pebble a non-exclusive, royalty free, worldwide licence to use the intellectual property rights in the Provider Materials.
4.2 During the Term, Pebble hereby grants to the Provider a personal non-exclusive, non-sublicensable, non-transferable, royalty free worldwide licence to use the Pebble Messaging Services to the extent necessary for the Provider to perform its obligations and enjoy its rights under this Pebble Messaging Service Agreement.
4.3 Save as set out in this Pebble Messaging Service Agreement, Pebble reserves all of its right, title and interest in the Pebble Messaging Services IPR, and Pebble does not grant the Provider any intellectual property rights in respect of the Pebble Messaging Services IPR, the Pebble Services, any intellectual property rights created pursuant to this Pebble Messaging Service Agreement or any related content or materials.
4.4 The Provider will not (or attempt to), without Pebble’s prior written consent:
4.4.1 change, alter, disassemble, create derivative works of or reverse engineer any of the Pebble Messaging Services IPR; or
4.4.2 decompile any prototypes or software or other tangible objects comprised within the Pebble Messaging Services nor use any similar means to discover its underlying composition, structure, source code or trade secrets.
4.5 The Provider will indemnify, defend and hold harmless Pebble, from and against any claims, costs, damages, losses, liabilities and expenses (including legal fees) relating to any claims, actions, suits or proceedings by third parties against Pebble arising out of or related in any way to:
4.5.1 Pebble’s use of the Provider Materials in accordance with the Provider’s instructions and the terms of this Pebble Service Agreement;
4.5.2 the Provider’s use of the Pebble Messaging Services IPR;
4.5.3 the Provider’s compliance with the Third-party Messaging Platform Terms, and the limits and exclusions of liability in clause 9 will not apply to this indemnity.
PAYMENT
5.1 All amounts payable under this Pebble Messaging Service Agreement are exclusive of VAT and any related payment processing costs (which shall be borne by the Provider).
5.2 Pebble may set off any liability of the Provider to Pebble against any liability of Pebble to the Provider.
5.3 Pebble may vary the Fees on at least 30 days’ written notice to the Provider, following which the Provider may terminate this Pebble Messaging Service Agreement by exercising its termination rights set out in clause 7.
5.4 If the Provider fails to make any payment of Fees to Pebble within 30 days of the due date of payment under this Pebble Messaging Service Agreement, Pebble may:
5.4.1 suspend or terminate the Pebble Messaging Service Agreement with immediate effect; and
5.4.2 withhold any payments of Fees due to the Provider pursuant to this Pebble Messaging Service Agreement, and collected by Pebble from care seekers via the Pebble Platform from 15 days following the relevant due date of payment under this Pebble Messaging Service Agreement until full payment of the relevant Fees.
CONFIDENTIALITY
6.1 Each Party will only use confidential information shared pursuant to this Pebble Messaging Service Agreement to enjoy its rights and comply with its obligations under this Pebble Messaging Service Agreement. Each Party will keep all confidential information strictly confidential and not disclose any part of any confidential information, except where the confidential information to the extent that it is:
6.1.1 already in the receiving Party’s possession or is in the public domain (except due to a third party’s breach of a duty of confidentiality); or
6.1.2 required to be disclosed by law or an order of a court of competent jurisdiction.
6.2 The obligations under this clause 6 will continue until the information enters the public domain except through the fault of the receiving Party.
TERM AND TERMINATION
7.1 This Pebble Messaging Service Agreement will start on the Effective Date and continue until:
7.1.1 either Party terminates this Pebble Messaging Service Agreement in accordance with this clause; or
7.1.2 the Pebble Service Agreement terminates.
7.2 Each Party may immediately terminate this Pebble Messaging Service Agreement if:
7.2.1 it provides thirty (30) days’ written notice to the other Party of its intention to terminate this Pebble Messaging Service Agreement;
7.2.2 the other Party commits a material breach of any term of this Pebble Messaging Service Agreement which breach is irremediable or (if such breach is remediable) fails to remedy that breach within a period of fourteen (14) days after being notified in writing to do so; or
7.2.3 the other Party suffers an insolvency event (or an analogous event).
7.3 Pebble may immediately terminate the Pebble Messaging Service Agreement if it reasonably believes that the Provider has breached any of the Third-party Messaging Platform Terms.
7.4 Pebble may immediately suspend this Pebble Messaging Service Agreement:
7.4.1 if Pebble suspends the Pebble Service Agreement; or
7.4.2 if Pebble notifies the Provider in advance of suspending, and explains the reason(s) for suspending.
7.5 Upon expiry or termination of this Pebble Messaging Service Agreement:
7.5.1 each Party shall return or destroy all of the other Party’s confidential information in its possession or control within thirty (30) days of such expiry or termination (unless reasonably required to retain certain confidential information by law);
7.5.2 the Provider shall immediately pay any outstanding Fees which are payable under this Pebble Messaging Service Agreement;
7.5.3 the Provider shall not be entitled to any refund or any reimbursement of any Fees paid under this Pebble Messaging Service Agreement;
7.5.4 all rights and licences in relation to the Pebble Messaging Services (including any related benefits or incentives) shall automatically cease and the Provider shall immediately stop using the Pebble Messaging Services; and
7.5.5 clauses 1, 4, 4.1, 6, 8 and 10 shall continue in full force and effect.
7.6 Any termination of this Pebble Messaging Service Agreement shall be without prejudice to any other rights or remedies a Party may be entitled to hereunder or at law and shall not affect any accrued rights or liabilities of either Party.
DATA PROTECTION
8.1 When using the Pebble Messaging Services, the Provider hereby represents that it will comply with Data Protection Laws when doing so (including without limitation providing compliant notices and procuring any necessary consents from care seekers before contacting them).
8.2 Where Pebble Processes Personal Data under this Pebble Messaging Services Agreement, the Provider will be a Controller and Pebble will be a Processor, and the terms of the Pebble DPA shall apply.
LIABILITY
9.1 Each Party represents, warrants and undertakes that it has: (i) the requisite rights, consents, power and authority to enter into this Pebble Messaging Service Agreement and to perform fully its obligations hereunder; and (ii) not entered into and will not enter into any arrangement which would restrict or inhibit the exercise by the other Party of its rights under this Pebble Messaging Service Agreement.
9.2 This clause 9 sets out the entire liability of each party (and their employees, agents, consultants, and subcontractors) to the other, in respect of any breach of the Pebble Messaging Service Agreement, any use by the Provider of the Pebble Messaging Services IPR, the Pebble Messaging Services or the Pebble Platform, and any representation, statement or tortious act or omission (including negligence) arising in connection with the Pebble Messaging Service Agreement.
9.3 Nothing in this Pebble Messaging Service Agreement limits or excludes the liability of either party for death, personal injury, fraud, fraudulent misrepresentation or fraudulent misstatement.
9.4 Subject to clause 9.3, Pebble shall not be liable to the Provider for loss of profits, business, goodwill, anticipated savings, goods, contract, use or data, or for any special, indirect, consequential or pure economic loss, costs, damages, charges or expenses.
9.5 The total liability of Pebble to the Provider arising in connection with the performance, or contemplated performance, of the Pebble Messaging Service Agreement, will be limited to the total amount of Fees paid or payable to Pebble, in the twelve (12) months preceding the relevant claim, under this Pebble Messaging Service Agreement.
9.6 Except as expressly provided in this Pebble Messaging Service Agreement, all warranties, conditions and other terms implied by statute or common law are excluded to the fullest extent permitted by law.
9.7 The Pebble Messaging Services IPR, the Pebble Messaging Services, their use and the results of such use are provided “as is” to the fullest extent permitted by law, and Pebble disclaims all express or implied warranties which may be implied in respect of them. The performance of the Pebble Messaging Services and the Pebble Messaging Services IPR rely on third parties beyond Pebble’s control. Pebble specifically disclaims any warranty:
9.7.1 that the use of the Pebble Messaging Services will be uninterrupted or error-free, that defects will be corrected and that there are no viruses or other harmful components;
9.7.2 that the security methods employed will be sufficient; or
9.7.3 regarding correctness, accuracy, or reliability.
9.8 In relation to the Third-party Messaging Platforms, the Provider acknowledges and agrees that:
9.8.1 Pebble does not determine or control the content of the Third-party Messaging Platform Terms;
9.8.2 Pebble shall have no liability associated with the Provider’s use of the Third-party Messaging Platform;
9.8.3 any modification of the Third-party Messaging Platforms, to the Third-party Messaging Platform Terms, or (if applicable) to the fees charged by the Third-party Messaging Platforms to the Provider, shall not relieve any of the Provider’s obligations to Pebble;
9.8.4 the Third-party Messaging Platforms may charge the Provider independently for access and use of their services, or the Third-party Messaging Platforms may charge Pebble for the Provider’s use and access, in which case Pebble may pass these fees on to the Provider; and
9.8.5 the Third-party Messaging Platforms may alter its fees at any time and Pebble has no control over any such changes.
GENERAL
10.1 This Pebble Messaging Service Agreement sets out the entire understanding between the Parties with respect to the subject matter and supersedes all prior oral and written representations, arrangements and understandings between the Parties relating thereto.
10.2 Nothing in this Pebble Messaging Service Agreement shall be deemed to constitute a partnership or agency relationship between the Parties.
10.3 If any part of this Pebble Messaging Service Agreement is or becomes unenforceable, such part will be construed as far as possible to reflect the Parties’ intentions and the remainder of the provisions will remain in full force and effect.
10.4 No forbearance, delay or indulgence by either Party in enforcing the provisions of this Pebble Messaging Service Agreement shall prejudice or restrict the rights of that Party nor shall any waiver of rights operate as a waiver of any subsequent breach of this Pebble Messaging Service Agreement.
10.5 This Pebble Messaging Service Agreement is made and shall be construed in accordance with the laws of England and the Parties submit to the non-exclusive jurisdiction of the English courts in relation to any dispute arising therefrom.
10.6 A person who is not a Party to this Pebble Messaging Service Agreement shall not have any rights under or in connection with it other than to the extent permitted by law.
10.7 The Provider may not without the prior written consent of Pebble transfer, assign or novate its rights or obligations under this Pebble Messaging Service Agreement.
10.8 All notices to be given under this Pebble Messaging Service Agreement must be in English, in writing and sent to the other Party at the address stated at the head of this Pebble Messaging Service Agreement (or using such other contact details as either Party has notified to the other).
Messaging Services Terms V1.0
DEFINITIONS
1.1 Aside from the terms in this Pebble Messaging Service Agreement in bold, other capitalised terms shall have the following meanings:
“Calendar Month” means, in relation to each month within a year, the period from the first day of that month until the last day of that month.
“Data Protection Laws” means any data protection, privacy, direct marketing or similar laws that apply to Personal Data Processed in connection with the Pebble Messaging Service Agreement, and “Controller”, “Personal Data”, “Processing” and “Processor” shall be as defined under Data Protection Laws.
“Fees”means any fees paid in relation to this Pebble Messaging Service Agreement (including the Monthly Fees and Additional Service Credit Fees).
“Service Agreement“ Under the Pebble Messaging Service Agreement, Pebble shall allow the Provider to send SMS and WhatsApp messages via the Pebble Platform to care seekers (“Pebble Messaging Services”). In order to provide the Pebble Messaging Services, Pebble shall integrate the Pebble Services with certain third-party messaging platforms (such as WhatsApp and Twilio) (“Third-party Messaging Platforms”).
“Payment Method” means a current, valid and accepted method of payment (which Pebble is permitted to accept or reject, acting in its sole discretion).
“Payment Terms” Pebble will invoice the Provider, in relation to the Pebble Messaging Services in each Calendar Month, on the first date of the proceeding Calendar Month. Each invoice issued by Pebble under this Pebble Messaging Services Agreement shall be due and payable within thirty (30) days from the date of receipt by the Provider.
“Pebble DPA” means the data processing addendum which governs the processing activities which relate to this Pebble Messaging Service Agreement, which can be accessed here.
“Pebble Messaging Services IPR” means any intellectual property rights which may come into the possession of the Provider from time to time (including intellectual property rights owned by Third-party Messaging Platforms), in order to receive the Pebble Messaging Services under this Pebble Service Agreement.
“Pebble Service Agreement” means the agreement entered into between Pebble and the Provider for the purpose of Provider using Pebble Services.
“Provider Materials” means any other intellectual property rights, information and materials provided by the Provider to Pebble.
“Term” means the period commencing on the Effective Date and ending on the date on which this Pebble Messaging Service Agreement is terminated in accordance with clause 7.
“Third-party Messaging Platform Terms” means terms, published by Third-party Messaging Platforms, in relation to the Pebble Messaging Services.
1.2 In this Pebble Messaging Service Agreement, unless the context otherwise so requires, “including” means “including, without limitation”.
1.3 In the event that there is any conflict between the terms of the Order Form, Messaging T&Cs, the Pebble DPA and the Pebble Service Agreement, the order of priority will (unless otherwise expressly stated in such documentation) be as follows:
1.3.1 the Order Form;
1.3.2 the Pebble Messaging T&Cs;
1.3.3 the Pebble DPA; and
1.3.4 the Pebble Service Agreement.
PROVIDER OBLIGATIONS
2.1 In order to receive the Pebble Messaging Services:
2.1.1 the Pebble Service Agreement must be valid and subsisting and, during the Term, the Provider must comply with the terms of the Pebble Service Agreement (to the extent relevant and applicable to the Pebble Messaging Services);
2.1.2 the Provider must complete certain onboarding activities, as notified to the Provider by Pebble;
2.1.3 the Provider must comply with the Third-party Messaging Platform Terms; and
2.1.4 the Provider must provide Pebble with any assistance, Provider Materials and information that Pebble reasonably requires to provide the Pebble Messaging Services.
SERVICES
3.1 Subject to the Provider’s compliance with its obligations under clause 2, Pebble shall provide the Pebble Messaging Services to the Provider during the Term.
3.2 The Provider hereby acknowledges that:
3.2.1 the Third-party Messaging Platforms are not being operated or provided by Pebble;
3.2.2 Pebble will not be liable for any losses suffered by the Provider if Pebble’s performance of its obligations under this Pebble Messaging Service Agreement is prevented or delayed by an act of omission of the Provider or any care seeker.
3.2.3 its information (including personal data and non-personal data) may be transferred to and processed by the Third-party Messaging Platform, and acknowledges that the Provider is responsible for configuring the interoperability of the Pebble Services with Third-party Messaging Platforms (to the extent any such actions are required outside of the Pebble Messaging Services); and
3.2.4 Pebble does not guarantee the continued availability or performance of the Third-party Messaging Platforms, or the continued interoperability of the Third-party Messaging Platform with the Pebble Services.
INTELLECTUAL PROPERTY
4.1 During the Term, the Provider hereby grants to Pebble a non-exclusive, royalty free, worldwide licence to use the intellectual property rights in the Provider Materials.
4.2 During the Term, Pebble hereby grants to the Provider a personal non-exclusive, non-sublicensable, non-transferable, royalty free worldwide licence to use the Pebble Messaging Services to the extent necessary for the Provider to perform its obligations and enjoy its rights under this Pebble Messaging Service Agreement.
4.3 Save as set out in this Pebble Messaging Service Agreement, Pebble reserves all of its right, title and interest in the Pebble Messaging Services IPR, and Pebble does not grant the Provider any intellectual property rights in respect of the Pebble Messaging Services IPR, the Pebble Services, any intellectual property rights created pursuant to this Pebble Messaging Service Agreement or any related content or materials.
4.4 The Provider will not (or attempt to), without Pebble’s prior written consent:
4.4.1 change, alter, disassemble, create derivative works of or reverse engineer any of the Pebble Messaging Services IPR; or
4.4.2 decompile any prototypes or software or other tangible objects comprised within the Pebble Messaging Services nor use any similar means to discover its underlying composition, structure, source code or trade secrets.
4.5 The Provider will indemnify, defend and hold harmless Pebble, from and against any claims, costs, damages, losses, liabilities and expenses (including legal fees) relating to any claims, actions, suits or proceedings by third parties against Pebble arising out of or related in any way to:
4.5.1 Pebble’s use of the Provider Materials in accordance with the Provider’s instructions and the terms of this Pebble Service Agreement;
4.5.2 the Provider’s use of the Pebble Messaging Services IPR;
4.5.3 the Provider’s compliance with the Third-party Messaging Platform Terms, and the limits and exclusions of liability in clause 9 will not apply to this indemnity.
PAYMENT
5.1 All amounts payable under this Pebble Messaging Service Agreement are exclusive of VAT and any related payment processing costs (which shall be borne by the Provider).
5.2 Pebble may set off any liability of the Provider to Pebble against any liability of Pebble to the Provider.
5.3 Pebble may vary the Fees on at least 30 days’ written notice to the Provider, following which the Provider may terminate this Pebble Messaging Service Agreement by exercising its termination rights set out in clause 7.
5.4 If the Provider fails to make any payment of Fees to Pebble within 30 days of the due date of payment under this Pebble Messaging Service Agreement, Pebble may:
5.4.1 suspend or terminate the Pebble Messaging Service Agreement with immediate effect; and
5.4.2 withhold any payments of Fees due to the Provider pursuant to this Pebble Messaging Service Agreement, and collected by Pebble from care seekers via the Pebble Platform from 15 days following the relevant due date of payment under this Pebble Messaging Service Agreement until full payment of the relevant Fees.
CONFIDENTIALITY
6.1 Each Party will only use confidential information shared pursuant to this Pebble Messaging Service Agreement to enjoy its rights and comply with its obligations under this Pebble Messaging Service Agreement. Each Party will keep all confidential information strictly confidential and not disclose any part of any confidential information, except where the confidential information to the extent that it is:
6.1.1 already in the receiving Party’s possession or is in the public domain (except due to a third party’s breach of a duty of confidentiality); or
6.1.2 required to be disclosed by law or an order of a court of competent jurisdiction.
6.2 The obligations under this clause 6 will continue until the information enters the public domain except through the fault of the receiving Party.
TERM AND TERMINATION
7.1 This Pebble Messaging Service Agreement will start on the Effective Date and continue until:
7.1.1 either Party terminates this Pebble Messaging Service Agreement in accordance with this clause; or
7.1.2 the Pebble Service Agreement terminates.
7.2 Each Party may immediately terminate this Pebble Messaging Service Agreement if:
7.2.1 it provides thirty (30) days’ written notice to the other Party of its intention to terminate this Pebble Messaging Service Agreement;
7.2.2 the other Party commits a material breach of any term of this Pebble Messaging Service Agreement which breach is irremediable or (if such breach is remediable) fails to remedy that breach within a period of fourteen (14) days after being notified in writing to do so; or
7.2.3 the other Party suffers an insolvency event (or an analogous event).
7.3 Pebble may immediately terminate the Pebble Messaging Service Agreement if it reasonably believes that the Provider has breached any of the Third-party Messaging Platform Terms.
7.4 Pebble may immediately suspend this Pebble Messaging Service Agreement:
7.4.1 if Pebble suspends the Pebble Service Agreement; or
7.4.2 if Pebble notifies the Provider in advance of suspending, and explains the reason(s) for suspending.
7.5 Upon expiry or termination of this Pebble Messaging Service Agreement:
7.5.1 each Party shall return or destroy all of the other Party’s confidential information in its possession or control within thirty (30) days of such expiry or termination (unless reasonably required to retain certain confidential information by law);
7.5.2 the Provider shall immediately pay any outstanding Fees which are payable under this Pebble Messaging Service Agreement;
7.5.3 the Provider shall not be entitled to any refund or any reimbursement of any Fees paid under this Pebble Messaging Service Agreement;
7.5.4 all rights and licences in relation to the Pebble Messaging Services (including any related benefits or incentives) shall automatically cease and the Provider shall immediately stop using the Pebble Messaging Services; and
7.5.5 clauses 1, 4, 4.1, 6, 8 and 10 shall continue in full force and effect.
7.6 Any termination of this Pebble Messaging Service Agreement shall be without prejudice to any other rights or remedies a Party may be entitled to hereunder or at law and shall not affect any accrued rights or liabilities of either Party.
DATA PROTECTION
8.1 When using the Pebble Messaging Services, the Provider hereby represents that it will comply with Data Protection Laws when doing so (including without limitation providing compliant notices and procuring any necessary consents from care seekers before contacting them).
8.2 Where Pebble Processes Personal Data under this Pebble Messaging Services Agreement, the Provider will be a Controller and Pebble will be a Processor, and the terms of the Pebble DPA shall apply.
LIABILITY
9.1 Each Party represents, warrants and undertakes that it has: (i) the requisite rights, consents, power and authority to enter into this Pebble Messaging Service Agreement and to perform fully its obligations hereunder; and (ii) not entered into and will not enter into any arrangement which would restrict or inhibit the exercise by the other Party of its rights under this Pebble Messaging Service Agreement.
9.2 This clause 9 sets out the entire liability of each party (and their employees, agents, consultants, and subcontractors) to the other, in respect of any breach of the Pebble Messaging Service Agreement, any use by the Provider of the Pebble Messaging Services IPR, the Pebble Messaging Services or the Pebble Platform, and any representation, statement or tortious act or omission (including negligence) arising in connection with the Pebble Messaging Service Agreement.
9.3 Nothing in this Pebble Messaging Service Agreement limits or excludes the liability of either party for death, personal injury, fraud, fraudulent misrepresentation or fraudulent misstatement.
9.4 Subject to clause 9.3, Pebble shall not be liable to the Provider for loss of profits, business, goodwill, anticipated savings, goods, contract, use or data, or for any special, indirect, consequential or pure economic loss, costs, damages, charges or expenses.
9.5 The total liability of Pebble to the Provider arising in connection with the performance, or contemplated performance, of the Pebble Messaging Service Agreement, will be limited to the total amount of Fees paid or payable to Pebble, in the twelve (12) months preceding the relevant claim, under this Pebble Messaging Service Agreement.
9.6 Except as expressly provided in this Pebble Messaging Service Agreement, all warranties, conditions and other terms implied by statute or common law are excluded to the fullest extent permitted by law.
9.7 The Pebble Messaging Services IPR, the Pebble Messaging Services, their use and the results of such use are provided “as is” to the fullest extent permitted by law, and Pebble disclaims all express or implied warranties which may be implied in respect of them. The performance of the Pebble Messaging Services and the Pebble Messaging Services IPR rely on third parties beyond Pebble’s control. Pebble specifically disclaims any warranty:
9.7.1 that the use of the Pebble Messaging Services will be uninterrupted or error-free, that defects will be corrected and that there are no viruses or other harmful components;
9.7.2 that the security methods employed will be sufficient; or
9.7.3 regarding correctness, accuracy, or reliability.
9.8 In relation to the Third-party Messaging Platforms, the Provider acknowledges and agrees that:
9.8.1 Pebble does not determine or control the content of the Third-party Messaging Platform Terms;
9.8.2 Pebble shall have no liability associated with the Provider’s use of the Third-party Messaging Platform;
9.8.3 any modification of the Third-party Messaging Platforms, to the Third-party Messaging Platform Terms, or (if applicable) to the fees charged by the Third-party Messaging Platforms to the Provider, shall not relieve any of the Provider’s obligations to Pebble;
9.8.4 the Third-party Messaging Platforms may charge the Provider independently for access and use of their services, or the Third-party Messaging Platforms may charge Pebble for the Provider’s use and access, in which case Pebble may pass these fees on to the Provider; and
9.8.5 the Third-party Messaging Platforms may alter its fees at any time and Pebble has no control over any such changes.
GENERAL
10.1 This Pebble Messaging Service Agreement sets out the entire understanding between the Parties with respect to the subject matter and supersedes all prior oral and written representations, arrangements and understandings between the Parties relating thereto.
10.2 Nothing in this Pebble Messaging Service Agreement shall be deemed to constitute a partnership or agency relationship between the Parties.
10.3 If any part of this Pebble Messaging Service Agreement is or becomes unenforceable, such part will be construed as far as possible to reflect the Parties’ intentions and the remainder of the provisions will remain in full force and effect.
10.4 No forbearance, delay or indulgence by either Party in enforcing the provisions of this Pebble Messaging Service Agreement shall prejudice or restrict the rights of that Party nor shall any waiver of rights operate as a waiver of any subsequent breach of this Pebble Messaging Service Agreement.
10.5 This Pebble Messaging Service Agreement is made and shall be construed in accordance with the laws of England and the Parties submit to the non-exclusive jurisdiction of the English courts in relation to any dispute arising therefrom.
10.6 A person who is not a Party to this Pebble Messaging Service Agreement shall not have any rights under or in connection with it other than to the extent permitted by law.
10.7 The Provider may not without the prior written consent of Pebble transfer, assign or novate its rights or obligations under this Pebble Messaging Service Agreement.
10.8 All notices to be given under this Pebble Messaging Service Agreement must be in English, in writing and sent to the other Party at the address stated at the head of this Pebble Messaging Service Agreement (or using such other contact details as either Party has notified to the other).
Messaging Services Terms V1.0
DEFINITIONS
1.1 Aside from the terms in this Pebble Messaging Service Agreement in bold, other capitalised terms shall have the following meanings:
“Calendar Month” means, in relation to each month within a year, the period from the first day of that month until the last day of that month.
“Data Protection Laws” means any data protection, privacy, direct marketing or similar laws that apply to Personal Data Processed in connection with the Pebble Messaging Service Agreement, and “Controller”, “Personal Data”, “Processing” and “Processor” shall be as defined under Data Protection Laws.
“Fees”means any fees paid in relation to this Pebble Messaging Service Agreement (including the Monthly Fees and Additional Service Credit Fees).
“Service Agreement“ Under the Pebble Messaging Service Agreement, Pebble shall allow the Provider to send SMS and WhatsApp messages via the Pebble Platform to care seekers (“Pebble Messaging Services”). In order to provide the Pebble Messaging Services, Pebble shall integrate the Pebble Services with certain third-party messaging platforms (such as WhatsApp and Twilio) (“Third-party Messaging Platforms”).
“Payment Method” means a current, valid and accepted method of payment (which Pebble is permitted to accept or reject, acting in its sole discretion).
“Payment Terms” Pebble will invoice the Provider, in relation to the Pebble Messaging Services in each Calendar Month, on the first date of the proceeding Calendar Month. Each invoice issued by Pebble under this Pebble Messaging Services Agreement shall be due and payable within thirty (30) days from the date of receipt by the Provider.
“Pebble DPA” means the data processing addendum which governs the processing activities which relate to this Pebble Messaging Service Agreement, which can be accessed here.
“Pebble Messaging Services IPR” means any intellectual property rights which may come into the possession of the Provider from time to time (including intellectual property rights owned by Third-party Messaging Platforms), in order to receive the Pebble Messaging Services under this Pebble Service Agreement.
“Pebble Service Agreement” means the agreement entered into between Pebble and the Provider for the purpose of Provider using Pebble Services.
“Provider Materials” means any other intellectual property rights, information and materials provided by the Provider to Pebble.
“Term” means the period commencing on the Effective Date and ending on the date on which this Pebble Messaging Service Agreement is terminated in accordance with clause 7.
“Third-party Messaging Platform Terms” means terms, published by Third-party Messaging Platforms, in relation to the Pebble Messaging Services.
1.2 In this Pebble Messaging Service Agreement, unless the context otherwise so requires, “including” means “including, without limitation”.
1.3 In the event that there is any conflict between the terms of the Order Form, Messaging T&Cs, the Pebble DPA and the Pebble Service Agreement, the order of priority will (unless otherwise expressly stated in such documentation) be as follows:
1.3.1 the Order Form;
1.3.2 the Pebble Messaging T&Cs;
1.3.3 the Pebble DPA; and
1.3.4 the Pebble Service Agreement.
PROVIDER OBLIGATIONS
2.1 In order to receive the Pebble Messaging Services:
2.1.1 the Pebble Service Agreement must be valid and subsisting and, during the Term, the Provider must comply with the terms of the Pebble Service Agreement (to the extent relevant and applicable to the Pebble Messaging Services);
2.1.2 the Provider must complete certain onboarding activities, as notified to the Provider by Pebble;
2.1.3 the Provider must comply with the Third-party Messaging Platform Terms; and
2.1.4 the Provider must provide Pebble with any assistance, Provider Materials and information that Pebble reasonably requires to provide the Pebble Messaging Services.
SERVICES
3.1 Subject to the Provider’s compliance with its obligations under clause 2, Pebble shall provide the Pebble Messaging Services to the Provider during the Term.
3.2 The Provider hereby acknowledges that:
3.2.1 the Third-party Messaging Platforms are not being operated or provided by Pebble;
3.2.2 Pebble will not be liable for any losses suffered by the Provider if Pebble’s performance of its obligations under this Pebble Messaging Service Agreement is prevented or delayed by an act of omission of the Provider or any care seeker.
3.2.3 its information (including personal data and non-personal data) may be transferred to and processed by the Third-party Messaging Platform, and acknowledges that the Provider is responsible for configuring the interoperability of the Pebble Services with Third-party Messaging Platforms (to the extent any such actions are required outside of the Pebble Messaging Services); and
3.2.4 Pebble does not guarantee the continued availability or performance of the Third-party Messaging Platforms, or the continued interoperability of the Third-party Messaging Platform with the Pebble Services.
INTELLECTUAL PROPERTY
4.1 During the Term, the Provider hereby grants to Pebble a non-exclusive, royalty free, worldwide licence to use the intellectual property rights in the Provider Materials.
4.2 During the Term, Pebble hereby grants to the Provider a personal non-exclusive, non-sublicensable, non-transferable, royalty free worldwide licence to use the Pebble Messaging Services to the extent necessary for the Provider to perform its obligations and enjoy its rights under this Pebble Messaging Service Agreement.
4.3 Save as set out in this Pebble Messaging Service Agreement, Pebble reserves all of its right, title and interest in the Pebble Messaging Services IPR, and Pebble does not grant the Provider any intellectual property rights in respect of the Pebble Messaging Services IPR, the Pebble Services, any intellectual property rights created pursuant to this Pebble Messaging Service Agreement or any related content or materials.
4.4 The Provider will not (or attempt to), without Pebble’s prior written consent:
4.4.1 change, alter, disassemble, create derivative works of or reverse engineer any of the Pebble Messaging Services IPR; or
4.4.2 decompile any prototypes or software or other tangible objects comprised within the Pebble Messaging Services nor use any similar means to discover its underlying composition, structure, source code or trade secrets.
4.5 The Provider will indemnify, defend and hold harmless Pebble, from and against any claims, costs, damages, losses, liabilities and expenses (including legal fees) relating to any claims, actions, suits or proceedings by third parties against Pebble arising out of or related in any way to:
4.5.1 Pebble’s use of the Provider Materials in accordance with the Provider’s instructions and the terms of this Pebble Service Agreement;
4.5.2 the Provider’s use of the Pebble Messaging Services IPR;
4.5.3 the Provider’s compliance with the Third-party Messaging Platform Terms, and the limits and exclusions of liability in clause 9 will not apply to this indemnity.
PAYMENT
5.1 All amounts payable under this Pebble Messaging Service Agreement are exclusive of VAT and any related payment processing costs (which shall be borne by the Provider).
5.2 Pebble may set off any liability of the Provider to Pebble against any liability of Pebble to the Provider.
5.3 Pebble may vary the Fees on at least 30 days’ written notice to the Provider, following which the Provider may terminate this Pebble Messaging Service Agreement by exercising its termination rights set out in clause 7.
5.4 If the Provider fails to make any payment of Fees to Pebble within 30 days of the due date of payment under this Pebble Messaging Service Agreement, Pebble may:
5.4.1 suspend or terminate the Pebble Messaging Service Agreement with immediate effect; and
5.4.2 withhold any payments of Fees due to the Provider pursuant to this Pebble Messaging Service Agreement, and collected by Pebble from care seekers via the Pebble Platform from 15 days following the relevant due date of payment under this Pebble Messaging Service Agreement until full payment of the relevant Fees.
CONFIDENTIALITY
6.1 Each Party will only use confidential information shared pursuant to this Pebble Messaging Service Agreement to enjoy its rights and comply with its obligations under this Pebble Messaging Service Agreement. Each Party will keep all confidential information strictly confidential and not disclose any part of any confidential information, except where the confidential information to the extent that it is:
6.1.1 already in the receiving Party’s possession or is in the public domain (except due to a third party’s breach of a duty of confidentiality); or
6.1.2 required to be disclosed by law or an order of a court of competent jurisdiction.
6.2 The obligations under this clause 6 will continue until the information enters the public domain except through the fault of the receiving Party.
TERM AND TERMINATION
7.1 This Pebble Messaging Service Agreement will start on the Effective Date and continue until:
7.1.1 either Party terminates this Pebble Messaging Service Agreement in accordance with this clause; or
7.1.2 the Pebble Service Agreement terminates.
7.2 Each Party may immediately terminate this Pebble Messaging Service Agreement if:
7.2.1 it provides thirty (30) days’ written notice to the other Party of its intention to terminate this Pebble Messaging Service Agreement;
7.2.2 the other Party commits a material breach of any term of this Pebble Messaging Service Agreement which breach is irremediable or (if such breach is remediable) fails to remedy that breach within a period of fourteen (14) days after being notified in writing to do so; or
7.2.3 the other Party suffers an insolvency event (or an analogous event).
7.3 Pebble may immediately terminate the Pebble Messaging Service Agreement if it reasonably believes that the Provider has breached any of the Third-party Messaging Platform Terms.
7.4 Pebble may immediately suspend this Pebble Messaging Service Agreement:
7.4.1 if Pebble suspends the Pebble Service Agreement; or
7.4.2 if Pebble notifies the Provider in advance of suspending, and explains the reason(s) for suspending.
7.5 Upon expiry or termination of this Pebble Messaging Service Agreement:
7.5.1 each Party shall return or destroy all of the other Party’s confidential information in its possession or control within thirty (30) days of such expiry or termination (unless reasonably required to retain certain confidential information by law);
7.5.2 the Provider shall immediately pay any outstanding Fees which are payable under this Pebble Messaging Service Agreement;
7.5.3 the Provider shall not be entitled to any refund or any reimbursement of any Fees paid under this Pebble Messaging Service Agreement;
7.5.4 all rights and licences in relation to the Pebble Messaging Services (including any related benefits or incentives) shall automatically cease and the Provider shall immediately stop using the Pebble Messaging Services; and
7.5.5 clauses 1, 4, 4.1, 6, 8 and 10 shall continue in full force and effect.
7.6 Any termination of this Pebble Messaging Service Agreement shall be without prejudice to any other rights or remedies a Party may be entitled to hereunder or at law and shall not affect any accrued rights or liabilities of either Party.
DATA PROTECTION
8.1 When using the Pebble Messaging Services, the Provider hereby represents that it will comply with Data Protection Laws when doing so (including without limitation providing compliant notices and procuring any necessary consents from care seekers before contacting them).
8.2 Where Pebble Processes Personal Data under this Pebble Messaging Services Agreement, the Provider will be a Controller and Pebble will be a Processor, and the terms of the Pebble DPA shall apply.
LIABILITY
9.1 Each Party represents, warrants and undertakes that it has: (i) the requisite rights, consents, power and authority to enter into this Pebble Messaging Service Agreement and to perform fully its obligations hereunder; and (ii) not entered into and will not enter into any arrangement which would restrict or inhibit the exercise by the other Party of its rights under this Pebble Messaging Service Agreement.
9.2 This clause 9 sets out the entire liability of each party (and their employees, agents, consultants, and subcontractors) to the other, in respect of any breach of the Pebble Messaging Service Agreement, any use by the Provider of the Pebble Messaging Services IPR, the Pebble Messaging Services or the Pebble Platform, and any representation, statement or tortious act or omission (including negligence) arising in connection with the Pebble Messaging Service Agreement.
9.3 Nothing in this Pebble Messaging Service Agreement limits or excludes the liability of either party for death, personal injury, fraud, fraudulent misrepresentation or fraudulent misstatement.
9.4 Subject to clause 9.3, Pebble shall not be liable to the Provider for loss of profits, business, goodwill, anticipated savings, goods, contract, use or data, or for any special, indirect, consequential or pure economic loss, costs, damages, charges or expenses.
9.5 The total liability of Pebble to the Provider arising in connection with the performance, or contemplated performance, of the Pebble Messaging Service Agreement, will be limited to the total amount of Fees paid or payable to Pebble, in the twelve (12) months preceding the relevant claim, under this Pebble Messaging Service Agreement.
9.6 Except as expressly provided in this Pebble Messaging Service Agreement, all warranties, conditions and other terms implied by statute or common law are excluded to the fullest extent permitted by law.
9.7 The Pebble Messaging Services IPR, the Pebble Messaging Services, their use and the results of such use are provided “as is” to the fullest extent permitted by law, and Pebble disclaims all express or implied warranties which may be implied in respect of them. The performance of the Pebble Messaging Services and the Pebble Messaging Services IPR rely on third parties beyond Pebble’s control. Pebble specifically disclaims any warranty:
9.7.1 that the use of the Pebble Messaging Services will be uninterrupted or error-free, that defects will be corrected and that there are no viruses or other harmful components;
9.7.2 that the security methods employed will be sufficient; or
9.7.3 regarding correctness, accuracy, or reliability.
9.8 In relation to the Third-party Messaging Platforms, the Provider acknowledges and agrees that:
9.8.1 Pebble does not determine or control the content of the Third-party Messaging Platform Terms;
9.8.2 Pebble shall have no liability associated with the Provider’s use of the Third-party Messaging Platform;
9.8.3 any modification of the Third-party Messaging Platforms, to the Third-party Messaging Platform Terms, or (if applicable) to the fees charged by the Third-party Messaging Platforms to the Provider, shall not relieve any of the Provider’s obligations to Pebble;
9.8.4 the Third-party Messaging Platforms may charge the Provider independently for access and use of their services, or the Third-party Messaging Platforms may charge Pebble for the Provider’s use and access, in which case Pebble may pass these fees on to the Provider; and
9.8.5 the Third-party Messaging Platforms may alter its fees at any time and Pebble has no control over any such changes.
GENERAL
10.1 This Pebble Messaging Service Agreement sets out the entire understanding between the Parties with respect to the subject matter and supersedes all prior oral and written representations, arrangements and understandings between the Parties relating thereto.
10.2 Nothing in this Pebble Messaging Service Agreement shall be deemed to constitute a partnership or agency relationship between the Parties.
10.3 If any part of this Pebble Messaging Service Agreement is or becomes unenforceable, such part will be construed as far as possible to reflect the Parties’ intentions and the remainder of the provisions will remain in full force and effect.
10.4 No forbearance, delay or indulgence by either Party in enforcing the provisions of this Pebble Messaging Service Agreement shall prejudice or restrict the rights of that Party nor shall any waiver of rights operate as a waiver of any subsequent breach of this Pebble Messaging Service Agreement.
10.5 This Pebble Messaging Service Agreement is made and shall be construed in accordance with the laws of England and the Parties submit to the non-exclusive jurisdiction of the English courts in relation to any dispute arising therefrom.
10.6 A person who is not a Party to this Pebble Messaging Service Agreement shall not have any rights under or in connection with it other than to the extent permitted by law.
10.7 The Provider may not without the prior written consent of Pebble transfer, assign or novate its rights or obligations under this Pebble Messaging Service Agreement.
10.8 All notices to be given under this Pebble Messaging Service Agreement must be in English, in writing and sent to the other Party at the address stated at the head of this Pebble Messaging Service Agreement (or using such other contact details as either Party has notified to the other).