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Your attention is drawn to the following terms and conditions under which you may use the TouchLine SMS Service. Please read these carefully before proceeding to register your phone with the service. They will legally bind you whether or not you choose to read them. By registering for use of the service you will be taken to have read, understood and accepted these terms and conditions in the same way as if you had signed a printed version and they will continue to apply every time you use the Service. These terms and conditions cover the supply of information services by: [1] WIRELESS INFORMATION NETWORK LIMITED of 1 Cliveden Office Village, Cressex Business Park, Lancaster Road, Cressex Business Park, High Wycombe, Buckinghamshire HP12 3YZ registered in England and Wales No 3212199 ("WIN") on the one hand to [2] the Cellular Phone of you THE CUSTOMER on the other ("the Customer") IT IS AGREED as follows: 1. DEFINITIONS 1.1 Unless the context otherwise requires: "Cellular Network" means any digital cellular network through which the Customer is able to receive the Service; "Cellular Phone" means a digital cellular handset capable of receiving SMS information services connected to one of the Cellular Networks; "IVR" means Interactive Voice Response whereby the Customer can complete Registration via the touch tones of his Cellular phone; "Marketing Opt-In" means the consent button the Customer selected giving WIN the right to send the occasional promotional messages of services or products that may be of interest to the Customer; "Registration" means the process whereby the Customer signs up for the Service over the Web or pay as you go on their phone bill (otherwise known as reverse billing); "SMS" means a text messaging facility used by WIN to provide the Service over the Cellular Networks; "Sources" means the initial suppliers of information to be provided by the Service; "Start Date" means the date the Customer completes and submits his Registration; "Subscription" means the sum paid by the Customer in accordance with the then published tariffs at the time of Registration; "the Service" means the provision of information provided by WIN and ordered by the Customer using the prescribed manner over the internet or via IVR. 1.2 Unless otherwise specified, words importing the singular include the plural, words importing any gender include every gender and words importing persons include bodies corporate and otherwise; and (in each case) vice versa. 2. CONDITIONS 2.1 This agreement governs the provision of the Service by WIN using the SMS facility of any Cellular Network separately identified as suitable for receiving the Service. 2.2 The Customer is responsible for providing and maintaining a Cellular Phone and ensuring connection to a Cellular Network suitable for receiving the Service from WIN. The Customer understands that if his phone is switched off or is out of coverage for a period of 7 days or more then the message may be deleted by the Cellular Network. 2.3 The Customer warrants that he is the owner or legitimate user of the Cellular Phone that he uses, or has the consent of the owner or legitimate user of the Cellular phone, to register for the Service. 2.4 Subject to clause 8 no variation to this Agreement shall be effective unless the Customer is given 21 days notice by SMS to his Mobile phone. 3. DURATION OF TERM 3.1 The term of this agreement commences from the Start Date and remains in force until the End Date or until such time as WIN cancels this agreement whichever is sooner. 3.2 For the avoidance of doubt no refund of the Subscription will be made in event of termination of this agreement except under the terms stated in clause 5.3 or where termination is as a result of a material breach of this Agreement by WIN. 4. SERVICE PROVISIONS 4.1 In accordance with the nature of fast moving real-time information and the vagaries of the Cellular Network the Customer acknowledges that WIN's responsibilities extend only to the provision of indicative information because it is possible that the Customer may use the Service in a way not contemplated by WIN and as such: [i] WIN make no warranties, express or implied, as to the results to be obtained by any person or entity from the use of the Service; [ii] WIN make no warranties, express or implied, with respect to the fitness for a particular purpose or use of the Service; [iii] WIN shall have no liability to or through the Customer for lost profits or consequential loss or damage arising from the use of, or inability to use, for whatever reason, the Service. 4.2 WIN will use all reasonable endeavours to ensure the uninterrupted and timely supply of the Service and to take all reasonable steps at its own expense to correct any error, omission or mistake in the Service but: [i] WIN shall be under no liability for any error in nor for any delay or failure in the transmission of the Service to the Customer; and [ii] WIN does not provide any warranty as to the accuracy and completeness of the information provided through the Service insofar as any inaccuracy or incompleteness is not a direct result of any action or omission reasonably within the control of WIN; and [iii] any such liability as might arise under [ii] above shall be limited to the Subscription paid by the Customer. 4.3 Moreover the Customer recognises that the Service may from time to time be adversely affected by local geography, topography and/or atmospheric conditions and/or other causes of interference and/or network coverage of his chosen Cellular Network and/or other event that is outside the control of WIN. 4.4 Any request by the Customer for any change and/or variance in the Service shall be done using the prescribed manner available over the Internet or IVR, or via other prescribed methods as may be introduced from time to time, and advertised as appropriate methods of registering for or altering the Customer's use of the Service. 5 PRICES AND TERMS OF PAYMENT 5.1 Prices for the Service shall be stated in the then current price list as published on the Internet or advertised in other media. All prices include VAT at the prevailing rate within European Union countries and exclude VAT elsewhere. 5.2 WIN may at any time vary all or any of the prices of the Service provided that it gives 21 days notice via SMS to the Customer of any such variation. 5.3 The Customer shall pay for the Service at the time of Registration by pay as you go on their phone bill (otherwise known as reverse billing). The Customer shall then have up to 14 days from the Start Date in which to cancel the Service. 5.4 Unless stated otherwise the Customer will be charged in advance via his credit card to receive his chosen services for the duration of this Agreement. For clarification WIN will not be liable for any non receipt of messages unless the Customer can prove that there is a persistent problem with the Service in which instance the limit of WIN's liability to the Customer will be the Subscription. 6 WARRANTIES AND LIABILITIES 6.1 The Customer shall indemnify WIN and keep WIN indemnified against any claim by any third party alleging loss and/or damage as a result of the Customer's use, or inability to use, the Service including but not limited to a breach by the Customer of clause 7 of this Agreement. 6.2 Except as expressly provided in this Agreement by WIN all representations, warranties and conditions whether expressed or implied by statute or common law or otherwise in relation to the Service are hereby excluded to the fullest extent permitted by the law. 6.3 Nothing herein shall have the effect of excluding or restricting the liability of WIN for death or personal injury resulting from its negligence. 7 DATA AND INTELLECTUAL PROPERTY RIGHTS The Customer is not allowed to publish, copy or re-distribute any data from the Service to any third party. In addition the Customer acknowledges that the Sources have valuable property rights in and to the data and that the data is not within the public domain. 8 VARIATION WIN may vary the terms and conditions of this Agreement to take account of new legislation, statutory instruments, Government Regulations or Licences or similar matters provided that Customer is alerted by SMS to any such variation which is clearly published on the internet and/or advertised in other media where details of the Service is provided on a regular basis. 9 ASSIGNMENT The Customer shall not assign any rights hereunder. 10 SUSPENSION & TERMINATION 10.1 The Service may be suspended or terminated immediately by WIN if in its judgement it finds the Customer in breach of any of the provisions of this Agreement. 10.2 WIN shall be entitled to discontinue the Service on 10 days notice to the Customer whenever the terms of its agreements with Sources require its discontinuance. 10.3 This agreement shall be terminated automatically if WIN receives notification from the Cellular Network with whom the Customer is contracted to use the Cellular Phone that the contract has been cancelled. 10.4 The termination of this Agreement shall not effect any pre-existing liability of either party to the other hereunder or affect any right of either party to recover damages or pursue any other remedy in respect of any breach by the other party of the terms and conditions thereof. 11 THIRD PARTIES The Contracts (Rights of Third Parties) Act 1999 shall not apply to this Agreement. 12 LAW This Agreement shall be governed by English law and the parties hereby submit to the exclusive jurisdiction of the English courts. |
