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END USER MESSAGING AND COMMUNICATIONS TERMS AND CONDITIONS
NOTICE TO USER: PLEASE READ THIS CONTRACT CAREFULLY. BY USING ALL OR ANY PORTION OF THE MESSAGING OR COMMUNICATIONS SERVICES YOU ACCEPT ALL THE TERMS AND CONDITIONS OF THIS AGREEMENT. YOU AGREE THAT THIS AGREEMENT IS ENFORCEABLE LIKE ANY WRITTEN NEGOTIATED AGREEMENT SIGNED BY YOU. IF YOU DO NOT AGREE, DO NOT USE THIS SOFTWARE. IF YOU ACQUIRED THE SOFTWARE ON TANGIBLE MEDIA (e.g. CD) WITHOUT AN OPPORTUNITY TO REVIEW THIS AGREEMENT AND YOU DO NOT ACCEPT THIS AGREEMENT, YOU MAY OBTAIN A REFUND OF THE AMOUNT YOU ORIGINALLY PAID IF YOU: (A) DO NOT USE THE SOFTWARE AND (B) RETURN IT, WITH PROOF OF PAYMENT, TO THE LOCATION FROM WHICH IT WAS OBTAINED WITHIN THIRTY (30) DAYS OF THE PURCHASE DATE.
1. Definitions
a) "we" or "us" means the service provider and or SMARTDIARY. b) "you" or "your" means the customer electronically registering. c) "Services" means the basic service providing SMS communication and Post Code look up services via SMARTDIARY smartdiary ("SMARTDIARY") and such other services as may be used or made available to you by us from time to time. d) "Term" means an initial minimum period as shown on the front on this Agreement starting on the date of activation of your service.
2. Duration
This Agreement will continue for the Term and thereafter. It can be brought to an end by either of us giving three calendar month’s written notice to the other to expire on or any time after the expiry of the Term.
3. The Services a) We aim to activate your Services within 12 hours of registering installing your software. Usually, however, we will activate your Service on the same working day. b) We aim to provide you with the Services at all times, but owing to the nature of telecommunications, it is impossible to provide a fault free service and the quality and coverage of the Services depends on other telecommunications networks to which SMARTDIARY is connected. As maintenance for the Services is carried out by SMARTDIARY (as applicable) we do not provide maintenance services, but if you experience a problem with the Services, please call our service number. Likewise, as the quality of the Services is dependant upon things outside of our control, we do not provide service quality levels, but, again, if there is a problem with the Services, please call our service number. c) On activation (or at any time later on), we may set a credit limit on the amount of message and post code charges you may incur during each calendar month (we call this a "Quota"). We shall give you prior notice, if a change is made by us to your Quota. If you wish to vary your Quota, you should contact us on +44(0)1625 449 010. We may agree to vary the Quota after making credit checks and we may ask you to pay a non-interest bearing deposit, which we will be able, at any time, to use to pay off any charges you owe us. At any time, you may ask for a refund of your deposit but this may result in us reducing your Quota. d) As our billing system is not updated instantly when you send a message, you may exceed your Quota, but if this happens, you will still be liable for all charges. e) On activation we may ask for a deposit to be used as security. We will be able, at any time, to use the non-interest bearing deposit to pay off any charges you owe us. f) Where there has been a significant increase in your usage pattern, we may require a deposit to allow continued service. We may suspend your service if a deposit is not paid.
4. Payment a) You must pay to us the connection fee (a once only payment if applicable), the annual (or other periodic) service charge (billed in advance or in arrears as we shall advise), the message charges (billed after the messages are made), the post code charges (billed after the address is looked up), and any other charges in respect of the Services provided to you or someone else using your service e.g. customised marketing messages, not available for appointment messages, etc. which will be billed as we shall advise. You must pay all these fees and charges within 14 days of the date of any invoice. b) All our charges for the Services are stated in our tariff guide, which is available from us upon request. This may change from time to time and we shall write to you with details of any changes. Unless otherwise agreed, the current standard tariff for messages up to 31st August 2006 will be charged at 15 pence for the first 100 during each calendar month, with additional messages being charged at 12 pence per message c) Please arrange to pay your bill by direct transfer. We will consider accepting payment by other methods but we may then charge you an administration fee each month. d) If you owe us any money, which is not in dispute and this is not paid when it should have been paid, we may charge you interest daily on the unpaid amount at the rate of 2% per annum above the base rate of Barclays Bank from time to time. d) VAT (where applicable) will be added to all our charges. e) We may arrange for invoices to be issued by a third party on our behalf. Invoices issued by such third party shall be binding on you and payment of such invoices in full to the third party will be a valid discharge of your liability to pay such invoices under this Agreement. f) Any messages sent or used outside of a SMARTDIARY recognised message plan, or after an undisputed invoice becomes overdue will be charged at 25 pence per message plus vat g) Multi-user features may be withdrawn, messaging and post code service disabled in the event that any charges are overdue for in excess of 21 days at SMARTDIARY’s dicression.
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5. Suspension of the Services We can suspend the provision of the Services without telling you:- • If we believe your Services is/are being used in an unauthorised way or for criminal activities; • If you are in breach of this Agreement (e.g. you fail to pay any charges when due, including any annual service or support charges); • If we believe you are sending data which are a nuisance, abusive, a hoax, menacing or indecent (including to the operators who deal with enquiries concerning the Services, or sending data which is racist, obscene, defamatory, in breach of confidence, in breach of any intellectual property right (including copyright) or otherwise objectionable or unlawful, or you allow others to do these things); • If your Quota is exceeded; • If we are aware or have reason to believe that this Agreement has been entered into fraudulently or we are satisfied that fraudulent or improper use of your Service is taking place; • If you do anything (or allow anything to be done) which we think may damage or affect the operation of the networks; • for reasons outside of our control. In the above cases this Agreement does not come to an end and you are still liable for all monthly (or other periodic) charges due during any period of suspension. Therefore, we recommend that you privately arrange insurance to cover any monthly (or other periodic) charges you have to pay. However, if you are unable to use all of the Services for a continuous period of 3 days because:- • There is a technical failure of the networks; • They are being tested, modified or maintained; or • access is denied to us you will receive a credit against your monthly (or other periodic) charge. The credit will represent that part of the monthly (or other periodic) charge for the period of suspension.
6. Variation of Charges and Terms a) We reserve the right to increase/decrease our charges from time to time and/or introduce new charges from time to time. If we increase/decrease our charges, we will give you at least 14 days' prior notice. b) We reserve the right to make changes to these terms from time to time and to introduce new terms from time to time if there are changes to the law, or due to changes to the licence under which SMARTDIARY (as applicable) operates its telecommunications network. We will notify you of any changes to these terms or new terms introduced.
7. Ending of this Agreement a) You may end this Agreement immediately by writing to us if:- • we do not do what we have to do under this Agreement and do not put it right within 21 days of being asked in writing to do so; • all of the Services are permanently no longer available to you; • we increase the monthly (or other periodic charge under clause 7a) and such increase (calculated as a percentage) is more than the increase in the Retail Prices Index Figure ("RPI", also calculated as a percentage) for the period from the month of the last increase (if any) to the month before we send the notice of the change in tariffs and you write to us before the increase takes effect. If we increase the monthly (or other periodic) charge by more than the increase in the RPI we will tell you; or • during the Term i) we increase in the United Kingdom and under clause 7a, message or other usage charges which have the effect of increasing your message or other usage charges by more than 10% or the increase in RPI calculated as in 8a above (whichever is the greater) based upon your previous call or usage pattern; ii) you write to us before the increase takes effect. b) We may end this Agreement immediately by writing to you if:- • you do anything (or allow anything to be done) which we think may damage or affect the operation of the networks or you become bankrupt or make any arrangement with creditors or go into liquidation or become subject to an administration order or a receiver is appointed over any of your assets; • you do not do what you have to do under this Agreement (e.g. you fail to pay any charges) and do not put it right within 7 days of being asked by us in writing to do so; or • all of the Services are permanently no longer available to you. c) When this Agreement comes to an end:- • you will have to pay immediately all charges outstanding; • unless you have ended this Agreement under clause 8 a) or in accordance with Clause 2 you will also have to pay the monthly (or other periodic) charge for the amount of the Term which is left to run or if the Term has expired you will have to pay immediately the monthly (or other periodic) charge for three further calendar month. If the Term has not expired and you pay us this money in one lump sum immediately when this Agreement comes to an end, we will reduce the amount you have to pay us by 2%. You will be unable to have your service reconnected until we release sender ID; and • we will repay any deposit you have given us but only if you do not owe us any money. No interest will be payable.
8. Liability and Exclusions a) We will be liable to you if our negligence causes death or personal injury. In all other circumstances, we will not be liable for loss of profits or revenue, loss of use, lost business or missed opportunities, wasted expenditure or savings you might have made. This does not affect your right to a refund of your monthly (or other periodic charge in the circumstances described in clause 6. There may be occasions when we are unable to provide the Services because of something outside of our reasonable control. We will not be liable to you if that is the case. b) If you are a consumer, the terms of this Agreement will not affect any rights which you may have under any Act of Parliament and which cannot be excluded by agreement.
9. Miscellaneous a) We reserve the right to transfer this Agreement to any third party at any time. You may not transfer this Agreement to anyone else unless we have agreed in writing beforehand and we shall not unreasonably withhold such agreement. b) Failure by either of us to enforce rights under this Agreement shall not prevent you or us (as the case may be) from taking further action. c) We and our network providers (as appropriate) make every effort to ensure the security of your communications. You are however advised that for reasons beyond our control, there is a risk that your communications may be unlawfully intercepted or accessed by those other than the intended recipient. For example, your communications may pass over third party networks over which we have no control and although your communications over the air interface with our systems are encrypted, providing a greater level of protection this cannot be guaranteed. d) If either of us needs to send notices to the other these must be in writing and can be delivered by hand or first class post to the other's address as stated on the order form and will be deemed to have arrived at their destination 48 hours after posting. e) Monitoring or recording of your text messages may take place for our business purposes, such as quality control and training, to prevent unauthorised use of our systems and to ensure effective systems operation and in order to prevent or detect crime. f) This Agreement is subject to English law. You may have the right to refer certain disputes to arbitration details of which are available from us upon request. g) Except in the case of any permitted assignment of this Agreement under clause h) A person who is not a party to this Agreement has no rights under the Contracts (Rights of Third Parties) Act 1999 or otherwise to enforce any clause of this Agreement. i) This agreement forms and integral part of the SMARTDIARY smartdiary End User Software License.