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Mediaburst reserves the right to amend these Terms and Conditions from time to time and any new features, improvements or changes to the current services will be subject to these terms and Conditions.
Continued use of Mediaburst shall constitute acceptance of the Terms and Conditions.
1. DEFINITIONS
1.1. “Affiliates” means in relation to the customer, any subsidiary or holding company of it or any subsidiary of any such holding company;
1.2. “Carrier” means any supplier or provider of telecommunications services to Mediaburst for the Services;
1.3. “Charges” means the charges payable by the Customer to Mediaburst for Services, as detailed in this Contract;
1.4. “Contract” means the Order Form together with any additional schedule and these Standard Terms & Conditions as amended from time to time;
1.5. “Customer” means the party who enters into this Contract to purchase the Services;
1.6. “Dedicated Short Code” means any Short Code provided exclusively for the use of an individual customer;
1.7. “Intellectual Property Rights” includes any design rights, utility models, patents, inventions, designs, service marks, logos, business names, trade names, trademarks (whether registered or unregistered), Internet domain names, applications for any of the foregoing, copyright, moral rights, rights in databases, data, source codes, reports, drawings, specifications, know-how, trade secrets, confidential information, software designs and/or other materials, semi-conductor rights, topography rights, rights in the nature of unfair competition and the right to sue for passing off and any other rights equivalent to any of the foregoing in any jurisdiction worldwide and any application for registration of the foregoing;
1.8. “Order Commencement Date” means the earlier of the date specified as the order commencement date on the Order Form or the day product or services were made available for use by the Customer;
1.9. “Order Form” means the signed order form submitted by the Customer as an offer to purchase the Services and accepted by Mediaburst;
1.10. “Service Description” means a description of the Services as set out in this Contract or order form;
1.11. “Service Levels” means the contracted minimum levels of Services, if any, as detailed in the Service Description.
1.12. “Services” means the services to be provided by Mediaburst pursuant to this Contract;
1.13. “Short Code” means a 5 digit telephone number;
1.14. “SMS” (Short Message Service) means a communications protocol which allows the interchange of short text messages to and from mobile telephone devices.
1.15. “Telephone Number” means any number provided by Mediaburst that allows customers or end users to communicate with one another.
1.16. In these Standard Terms, unless the context otherwise requires:
reference to the singular includes the plural and vice versa, and reference to a gender includes the other gender;
references to a statutory provision includes references to that statutory provision as from time to time amended, extended or re-enacted and any regulations made under it provided that in the event that the amendment, extension or re-enactment of any statutory provision or introduction of any new statutory provision has a material impact on the obligations of either party, the parties will negotiate in good faith to agree such amendments to these Standard Terms as may be appropriate in the circumstances;
the headings in these Standard Terms are for ease of reference only and shall not affect its interpretation.
2. SUPPLY OF SERVICES
2.1. Mediaburst will provide the Services to the Customer and its Affiliates in accordance with the Product or Service Description and will do so with reasonable skill and care. Mediaburst do not guarantee the Products and Service to be fault free and shall not be liable for any fault or interruption in the provision of the Product or Services.
2.2. Mediaburst shall be entitled to interrupt, suspend or change the Services for technical or operational reasons such as Maintenance or in the event of an emergency. Mediaburst will use reasonable endeavours to provide prior notice to the Customer of any interruption, suspension or change provided that, where Mediaburst is unable to do so, it shall provide such notice as soon as practicable.
3. CUSTOMER OBLIGATIONS
3.1. A username and password will be assigned to the Customer by Mediaburst. The Customer is responsible for keeping this username and password confidential and is responsible for all activities that occur under this username and password.
3.3. The Customer agrees to notify Mediaburst immediately if they become aware of any unauthorized use or any other breach of security that occurs in relation to the Customer’s account.
3.4. The Customer shall not re-sell, redistribute or copy the Services (or any part thereof), or transfer rights to the use of the Services to any third party.
3.5. The Customer warrants that it will not use the Services:
3.5 (a). in a way that does not comply with the terms of any legislation or regulatory provisions including, without limitation, the Data Protection Act 1998,
3.5 (b). in any unlawful or fraudulent way, or in connection with any unlawful or fraudulent action;
3.5 (c). to send, store, knowingly receive, upload, download, use or re-use any material which is abusive, indecent, defamatory, obscene or menacing, which infringes any Intellectual Property Rights or which is or in breach of any confidence, privacy or any other rights;
3.5 (d). to send or procure the sending of any unsolicited advertising, promotional or other material other than in the case of the Customer to its own customers, who have opted into receiving such material;
3.6 The Customer is solely responsible for all acts or omissions that occur through the Customer’s account, including the content of any messages sent or received using the Services.
4. INDEMNITY
4.1. The Customer agrees to hold harmless, indemnify and keep Mediaburst and its suppliers, fully and effectively indemnified against any and all losses, liabilities, claims, actions, damages, proceedings, demands, costs, charges and expenses of whatsoever nature arising from or in relation to the use of the Products or Services or any breach, or any act or omission by the Customer in respect of its obligations in these Standard Terms.
4.2. The Customer shall indemnify and keep indemnified Mediaburst against any losses, claims, damages and expenses that are incurred by Mediaburst as a result of any infringement or alleged infringement by the Customer of any Mediaburst Intellectual Property Rights used in connection with the Services.
5. PAYMENT AND CHARGES
5.1. In consideration for Mediaburst providing the Services under this Contract, the Customer shall pay the Charges set out in the Order Form in accordance with this Contract.
5.2. Charges shall be calculated and invoiced in accordance with the payment terms set out in Schedule 1.
5.3. Mediaburst may change the level of Charges or the manner of their calculation by giving the Customer not less than 30 days notice of such change. If Mediaburst increase the level of Charges, the Customer may terminate this Contract by giving Mediaburst at least 30 days’ notice.
5.4. All text messages must be used within 12 months of the date of purchase.
6. INTELLECTUAL PROPERTY RIGHTS
6.1. Any and all Intellectual Property Rights used or embodied in or in connection with the Services shall be and remain the sole property of Mediaburst or Mediaburst’s licensors. No title or Intellectual Property Rights therein or in any modification or extension thereof shall pass to the Customer. The Customer acknowledges and agrees that it shall have no right to any Intellectual Property Rights arising as a result of any use of the Services. Mediaburst acknowledges that it shall have no rights to any Intellectual Property Rights in relation to the business or activities of the Customer or its Affiliates.
6.2. The Customer acknowledges Mediaburst’s and any third party suppliers’ title, interest and rights with respect to the Services and the Customer shall not take any action to jeopardise, limit or interfere in any manner with such title, interest and rights, including but not limited to, using Mediaburst’s trade name or trademarks.
6.3. Where software is provided to enable the Customer to use the Services, Mediaburst grants the Customer, for the duration of this Contract, a non-exclusive, non-transferable licence to use the software for that purpose in the United Kingdom.
6.4. Except as permitted by applicable law, the Customer must not, without Mediaburst’s prior written consent, copy, de-compile or modify the software nor copy any manuals or documentation provided with the Services.
7. WARRANTIES
7.1. Where Mediaburst supplies, in connection with the provision of the Services, any goods or services supplied by a third party, Mediaburst does not warrant or guarantee the quality, fitness for purpose of such goods or services but shall.
8. LIABILITY
8.1. Nothing in this Contract shall exclude or limit:
8.2. Mediaburst’s liability for death or personal injury caused by its negligence;
8.3. any breach of obligations implied by section 12 of the Sale of Goods Act 1979 or section 2 of the Supply of Goods and Services Act 1982;
8.4. Mediaburst’s liability to the Customer for fraud or fraudulent misrepresentation;
8.5. Mediaburst will not be liable to the Customer for any loss of profits; loss of revenue; loss of anticipated savings; loss of opportunity; loss of data (including corruption to and reinstatement of any data); loss of business opportunity; loss of goodwill or injury to reputation; punitive damages; or losses suffered by third parties regardless of whether such loss is direct, indirect, special or consequential arising out of, or in connection with, this Contract.
8.6. Mediaburst’s liability to the Customer whether in contract, tort (including negligence) or otherwise, arising out of, or in connection with this Contract shall be limited in aggregate to the Charges paid by the Customer under this Contract in the 3 month period immediately preceding the month in which the event giving rise to such claim took place.
8.7. Mediaburst shall not be liable for any failure of the Service attributable to any modification to the Service or combination of the Service with other software or equipment.
8.8. Each provision of these Standard Terms, excluding or limiting liability, operates separately. If any part is held by a court to be unreasonable or inapplicable, the other provisions shall continue to apply.
8.9. The Customer acknowledges that Mediaburst is unable to exercise control over any content placed on or accessible through the Customer’s use of the Services and Mediaburst shall have no liability as to the quality, content or accuracy of such content.
9. VARIATION
9.1. In the event that the Customer requires a change to this Contract, the Customer shall inform Mediaburst in writing. Any changes requested by a Customer shall not come into effect until a written acceptance of the proposed change is issued by a person authorised by Mediaburst.
10. TERM AND DURATION
10.1. This Contract shall commence on the Order Commencement Date and remain in full force and effect unless terminated by either party.
11. TERMINATION
11.1. Either party may terminate this Contract upon one month’s written notice, except where
11.2. The services supplied include a Dedicated Short Code, in which case either party may terminate this contract upon three month’s written notice.
11.3. Either party may terminate this Contract immediately if the other breaches the terms of this Contract.
11.4. Termination shall not prejudice or affect any right of action or remedy which shall have accrued or shall thereafter accrue to either party and all provisions which are to survive this Contract or impliedly do so shall remain in force and in effect.
11.5. The Customer shall be liable for all outstanding amounts incurred until up to and including the date of termination.
12. USE OF TELEPHONE NUMBERS
12.1. For those Services where the Customer is issued with a telephone number(s) to use the Services:
12.2. all rights in the issued telephone number(s) remain vested in Mediaburst and the Customer does not acquire any rights in such telephone number(s) by virtue of this Contract;
12.3. subject to any legal obligation to provide number portability, the Customer cannot sell the telephone number(s) or agree to transfer them to anyone else;
12.4. the telephone number(s) are unique for use within the United Kingdom only and international call charge rates will apply to any use of the Services by the Customer outside of the United Kingdom. Mediaburst does not warrant, and accepts no liability in relation to, the availability of any telephone number(s) from overseas countries.
12.5. The right of the Customer to use any telephone number(s) issued under this Contract will end with termination of this Contract (except where otherwise required by any applicable law or regulations). The Customer acknowledges and accepts that Mediaburst may then reissue such telephone number(s) to other Mediaburst customers.
13. DATA PROTECTION
13.1. The Customer and Mediaburst warrant that they comply and will comply with any obligations it has or may have under the Data Protection Act 1998.
13.2. Where the provision of services by the Customer to end users involves the transfer or disclosure of personal information to, or use of personal information by, Mediaburst, the Customer warrants that it shall obtain and keep in place all necessary consents and approvals required for such transfer, disclosure or use under the Data Protection Act 1998 or any other legal or regulatory requirement.
13.3. Mediaburst will not monitor, edit or disclose any information about the Customer or the Customer’s account, including its contents, without the Customer’s permission, unless Mediaburst believes in good faith that it is necessary to (i) conform to legal or regulatory requirements (including to comply with any direction received from a regulatory body) (ii) protect or defend the rights or property of Mediaburst or (iii) enforce this Contract or protect the reputation and business of Mediaburst. The Customer agrees that Mediaburst may access the Customer’s account including its contents, for these purposes and in order to respond to operational or technical issues.
13.4. Mediaburst may, from time to time, send the Customer communications via email or SMS of any updates, upgrades, notices or other information relating the Services or this Contract that Mediaburst deems important for the Customer.
14. THIRD PARTY RIGHTS
14.1. A person who is not a party to this Contract has no right under the Contracts (Rights of Third Parties) Act 1999 (“Act”) to enforce any term of this Contract.
15. LAW
15.1. This Contract shall be governed by and construed in accordance with English law and each party agrees to submit to the exclusive jurisdiction of the English courts.
16. GENERAL
16.1. Notices under this Contract may be served in writing, delivered personally, or via email. They should be sent to which ever address the other party notifies should be used for notices under this contract.
16.2. If any provision of this Contract is held invalid, illegal or unenforceable for any reason by any court of competent jurisdiction, such provision shall be severed and the remainder of the provisions of this Contract shall continue in full force and effect.
16.3. The Customer may not assign or deal in any way with all or part of the benefit of or its rights or benefits under this Contract except with the prior written consent of Mediaburst.
16.4. Mediaburst may assign this Contract to a parent, subsidiary or any group company, in whole or in part, without the prior written consent of the Customer.
16.5. Except to the extent of any misrepresentation or breach of warranty which constitutes fraud, this Contract constitutes the entire agreement between the parties relating to the subject matter of this Contract.
16.6. Notwithstanding anything else contained in this Contract, the Customer acknowledges and agrees that where all or any part of the Services is provided by a Carrier, the Customer shall have no more rights as against Mediaburst than the rights which Mediaburst has against such Carrier in respect of a Service.
Schedule 1
Payment Terms
Payment of monthly Charges must be made to Mediaburst within twenty (20) calendar days of the date of the invoice being issued by Mediaburst (the “Due Date”).
Interest shall accrue on any overdue invoice from the Due Date until payment is made a rate of 5% per annum above the base-lending rate of The Royal Bank of Scotland Plc.
1. Payment by direct debit
Charges shall, unless otherwise specified in the Order Form, be paid by the Customer by direct debit. The Customer agrees that all payments which fall due may be deducted by Mediaburst at any time following submission of the invoice to the Customer. The Customer undertakes not to cancel any such direct debit mandates during the term of the Contract and shall take all such steps as are necessary to ensure that such direct debit mandates can be processed by Mediaburst or its financial institution.
In the event that Mediaburst or its financial institution is unable to process a direct debit by the Due Date, all Charges due from the Customer shall become immediately due and payable on notice to the Customer.
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