Terms and Conditions

Corporate SMS Messaging Terms and Conditions

Version 1.5 – January 2006

• This Agreement describes the terms on which Dynmark International Limited, Company Number 04343332 ("we", "our", "us") offers you the user ("you") access to the corporate SMS text messaging services described on this site, or offered to you through a direct connection to our gateway ('Services').

• By registering an Account with us, you confirm that:
  

  (A) you have read, understood and agree to abide by the terms and conditions contained in this Agreement and the documents it incorporates by reference;

  (B) a print out of the Agreement and the documents it incorporates by reference will constitute "in writing" under any applicable law or regulation.

• If you do not accept these terms and conditions you will not be able to use the Services provided by us. If you have any questions please contact us (details on our Contact Us page). We may amend this Agreement at any time by posting the amended terms on our site. We shall also inform you by e-mail that our terms and conditions have been amended and all amended terms and conditions shall be effective 5 working days after they are initially posted on our site. This Agreement may not be otherwise amended.

1 Eligibility

Our Services are available only to businesses who can form legally binding contracts under applicable law. Our Services are not available to individuals under the age of 18, users dealing as consumers (as defined by English consumer protection legislation), those with mental incapacity or to temporarily or indefinitely suspended or cancelled users.

2 Services

2.1 Our site acts as a venue for commercial Short Message Service (SMS) services. These Services are described more fully on our website. In order to benefit fully from our Services, you must have full access to the internet and a mobile phone.

2.2 Each time you use our Services, it is your responsibility to ensure that the network that you are sending messages to is covered by our network coverage, that the intended recipient equipment is capable of receiving the message and that the telephone number that you are sending the message to is the telephone number of your intended recipient. We cannot accept any liability for mis-delivered or undelivered messages as a result of you failing to do so.

2.3 You undertake that you will not use the Services to transmit or receive material which is in violation of any law or regulation or which is obscene, threatening, offensive, defamatory, in breach of confidence or otherwise unlawful. You further undertake to use the Services in accordance with any acceptable use policies of any connected networks or internet providers and any message content rules and policies of the various network operators and regulatory bodies.

2.4 We may in our sole discretion change some or all of our Services at any time. In the event we introduce a new service, the charges (if any) for that service are effective at the date of the launch of the service. Some services may have certain additional requirements (such as the submission of a Customer Care Form (CCF)) prior to provisioning of such services.

3 Registration

3.1 To register, you will be required to provide us with the following information: Name, Address, Telephone Numbers, e-mail address. Upon receipt of your application, we may carry out user status checks to verify your identity, your mobile telephone number and your credit status.

3.2 You will be notified whether your application has been successful or not. If your application has been successful, we will confirm your chosen identifying password and user name by e-mail. We will then require you to pay the charges provided to you as a quotation by one of our sales personnel. Upon receipt by us of the charges, you will then be able to use our Services. We will use your unique user name and password to identify you as you use our Services.

3.3 You undertake to register for our Services using your correct name, address and any other requested details. If any of the information you enter becomes incorrect or is superseded you must notify us with the correct information as soon as possible by altering your details in the ‘Account Administration’ area of the website, after you have logged in.

4 Charges

4.1 The charges for using the standard SMS Service are set out in your original quotation, all other pricing is POA. You are responsible for paying all Charges or other fees associated with using our Services through our website and all applicable taxes. All charges and fees are exclusive of value added tax (for which you shall be additionally liable) and shall be payable in advance via credit or debit card (or by such other means as shall be agreed in writing by us). We reserve the right to charge interest at the rate of 4% per annum above the base lending rate of Barclays Bank Plc on all sums not paid by the due date.

4.2 We reserve the right to increase the charges by providing to you no less than 30 days prior written notice of the increase (such increase being effective at the end of the 30 day period), provided always that we shall not increase the charges more than once in any 12 month period.

4.3 We shall debit from your account all messages that are sent by you where the message has been submitted to our third party suppliers for delivery, whether the message has been successfully delivered or not.

4.4 In the event that messages are duplicated by a third party, these will treated as messages that have been sent, unless a remedy can be applied for on the grounds of a technical failure.

4.5 Unless otherwise stated, the currency used on this website will be £ Sterling.

5 Your Information

5.1 "Your Information" is defined as any information you provide to us in the registration, in any message area (including any feedback area) or through any e-mail feature. You are solely responsible for Your Information.

5.2 Your Information must be accurately described and you are liable and shall indemnify us for any errors or omissions contained therein and in respect of any breach of the terms of clause 5.3.

5.3 Your Information shall not:- 5.3.1 be false, inaccurate, misleading or fraudulent; 5.3.2 infringe any third party's copyright, patent, trademark, trade secret or other proprietary rights or rights of publicity or privacy; 5.3.3 violate any law, statute, ordinance or regulation (including without limitation those governing export control, consumer protection, unfair competition, anti-discrimination or false advertising); 5.3.4 be defamatory, trade libellous, unlawfully threatening or unlawfully harassing; 5.3.5 be obscene or contain child pornography or, if otherwise adult in nature or harmful to minors, 5.3.6 endeavour to sell any firearms, offensive weapons, ammunition, hate literature, alcohol, tobacco products, pharmaceutical products, food and drink, living creatures, or stolen or illegally imported goods, or any item to which a false, illegal or misleading description is applied or other unsafe or dangerous goods; 5.3.7 contain any viruses or other computer programming routines that are intended to damage, detrimentally interfere with, intercept or extract any system, data or personal information; 5.3.8 create liability for us or cause us to lose (in whole or in part) the services of our Internet Service Providers or other suppliers;

6 Username/Password

You are solely responsible for actions taken under your username and password and should not disclose it to or share it with anyone else. We are not responsible for any misuse of your password and you must not use your password for any unauthorised purpose.

7 Access and Interference

7.1 Without limiting any other remedies, we may in our absolute discretion suspend or terminate your registration and take further legal action against you if you are found in any way to have engaged in fraudulent activity in connection with our site and our Services or have breached any term of this Agreement including, but not limited to, the provision of false registration or other misuse of our Services, including but not limited to the sending of unsolicited advertising or promotional material.

7.2 Our website is unique to us and you agree that you will not use any device to copy our web pages or the content contained therein or the 'look and feel' thereof without our prior express written permission. You agree that you will not use any device, software or routine to interfere or attempt to interfere with the proper working of our website. You agree that you will not take any action that imposes an unreasonable or disproportionately large load on our infrastructure or bandwidth. If you do we are entitled to suspend or cancel your registration and take further legal action against you.

7.3 Much of the information on our site is updated on a real time basis and is proprietary or is licensed to us by our users or third parties. You agree that you will not copy, reproduce, alter, modify, create derivative works, or publicly display any content (except for Your Information) from our website without the prior express written permission from us or the appropriate third party.

8 Termination

Without limiting other remedies, we may immediately issue a warning, temporarily suspend, indefinitely suspend or terminate your registration and refuse to provide our Services to you: (a) if you breach this Agreement or any documents it incorporates by reference; (b) if we are unable to verify or authenticate any information you provide to us; or (c) if we believe that your actions may cause legal liability for you, our users or us; or (d) if you enter into receivership, voluntary or compulsory liquidation or an administration order is issued; (e) for any other reason as we, in our absolute discretion, may determine. Without prejudice to the provisions of this clause 8, we may terminate this Agreement by providing 30 days prior written notice.

9 Privacy

9.1 Our current Privacy Policy is available on our website and its terms are incorporated into this Agreement. In the event of any conflict between the terms of this Agreement and the terms of our Privacy Policy the terms of this Agreement shall prevail.

9.2 We may change our Privacy Policy from time to time and our changes are effective after we provide you with at least thirty (30) days' notice of the changes by posting the changes on our website.

10 Intellectual Property

You agree that all copyright, trade marks and all other intellectual property rights in and relating to our Services are owned by us (or our third party licensors). You must not use any of those intellectual property rights or our Services except to the extent necessary to conduct transactions through our website or in such manner as authorised by this Agreement.

11 Liability

11.1 We provide our website and the Services "as is" and without any warranty or condition, express, implied or statutory which are excluded to the fullest extent permitted by law. We have no control over or responsibility for the quality, truth, accuracy or legality of messages sent and received through our Services (all of which shall be your responsibility) and you shall indemnify us in respect of any liability, loss, damages or damage suffered by us as a result of the transmission and/or receipt of any messages. We hereby exclude all liabilities, costs, expenses, claims and demands relating to any content of messages sent and received through or in connection with our Services.

11.2 While we shall use all reasonable endeavours to ensure that the Services are provided promptly and continuously, we do not accept any liability for delay or failure to provide the Services or any interruption or suspension of the Services or any non-delivery or mis-delivery of any messages where the same arises in whole or in part from any act or omission either by you or of any of our third party suppliers.

11.3 We are not liable to you or to any third party for any indirect or consequential loss or damage, or for any loss of data, profit, contracts, revenue or business caused (whether arising out of the negligence of ourselves or our employees or other agents) even if that loss was foreseeable or the possibility of such loss was brought to our attention.

11.4 Without limiting the effect of the provisions of this clause 11 our liability under this Agreement (whether arising in negligence or otherwise) will not under any circumstances exceed £10,000 per claim or series of connected claims and an aggregate limit in any twelve month rolling period of £100,000. Limits to be checked with your insurers.

11.5 Nothing in this Agreement limits our liability for death or personal injury resulting from our negligence or the negligence of our employees or our liability for fraudulent misrepresentation.

12 Indemnity

You agree to indemnify and hold us and our subsidiaries, affiliates, officers, directors, agents, and employees, harmless from any claim or demand, including reasonable legal fees, made by any third party due to or arising out of your breach of this Agreement or any documents incorporated by reference, or your violation of any law or the rights of a third party.

13 Legal Compliance

You shall comply with all applicable laws, statutes, ordinances and regulations regarding your use of our Services.

14 No Agency

The relationship between ourselves and you is that of independent contractors and no agency, partnership, joint venture, employee-employer or franchisor-franchisee relationship is intended or created by this Agreement.

15 Notices

Except as explicitly stated otherwise, any notices shall be given by email to us at info@cpwmessaging.co.uk or to you at the e-mail address you provide to us during the registration process. Notice shall be deemed given 24 hours after e-mail is sent, unless the sending party is notified that the email address is invalid.

16 Law and Disputes

16.1 You agree to act in good faith to resolve any dispute or claim arising out of the Services we provide to you or relating in any way to this Agreement promptly through negotiations with us.

16.2 If the matter is not resolved through negotiation, you agree that you will attempt in good faith to resolve the dispute or claim through an Alternative Dispute Resolution ("ADR") procedure as recommended by the Centre for Dispute Resolution.

16.3 If the matter has not been resolved by an ADR procedure within 30 days of the initiation of such procedure, (or such other period as may be agreed) or if either you or us will not or ceases to participate in an ADR procedure, the dispute shall be referred to the exclusive jurisdiction of the English Courts.

16.4 We may seek any interim or preliminary relief from a court of competent jurisdiction necessary to protect our rights or property pending the completion of the ADR procedure.

16.5 This Agreement shall be governed by the laws of England.

17 General

17.1 We shall be entitled to assign or sub-contract any or all of our rights and obligations under this Agreement. If we exercise this right we shall name the assignee or sub-contractor on our website. You shall not without our written consent assign, sub-contract or otherwise transfer any of your rights and obligations under this Agreement.

17.2 We will not be liable for any failure to perform our obligations under this Agreement, including but not limited to our failure to deliver messages, where such liability is caused by matters beyond our reasonable control, including but not limited to power outages and any acts or omissions of telephone operators.

17.3 If any provision of this Agreement is held to be invalid or unenforceable, such provision shall be struck out and the remaining provisions shall be enforced.

17.4 Headings are for reference purposes only and in no way define, limit, construe or describe the scope or extent of such section.

17.5 Our failure to act with respect to a breach by you or others does not waive our right to act with respect to subsequent or similar breaches.

17.6 This Agreement sets out the entire understanding and agreement between us with respect to the subject matter hereof (except in the case of fraud).

17.7 Each party acknowledges that, in entering into this Agreement, it does not do so on the basis of, and does not rely on, any representation, warranty or other provision except as expressly provided herein, and all conditions, warranties or other terms implied by statute or common law are hereby excluded to the fullest extent permitted by law. This term does not apply to fraudulent misrepresentation.

17.8 We do not apply any time constraints associated with SMS message credits unless notified in writing.

17.9 A strict no refund policy is applied to all our products and services.

17.10 Users may lodge complaints concerning the website with us at info@cpwmessaging.co.uk

18 Codes of Conduct

We may provide hyperlinks to websites not controlled by us ("target sites") and such hyperlinks do not imply any endorsement, agreement on or support of the content, products and/or services of such target sites. Messaging Solutions does not editorially control the content, products and/or services on target sites and shall not be liable, in any manner whatsoever, for the access to, inability to access, use, inability to use or content available on or through target sites.

United Kingdom
ICSTIS Code:
http://www.icstis.org.uk/pdfs/Code_Practice_10_Amended.pdf

United States of America
Code of Conduct as per the Mobile Marketing Association (source MMA) USA:
http://www.mmaglobal.com/modules/content/index.php?id=5