|
1 DEFINITIONS
1.1 In these Standard Terms the following definitions shall apply:
1.2 "Call" means the successful establishment of a connection
with an end user using a telephone number governed by this Contract
and which enables the conveyance of signals and/or messages to or
from such end user;
1.3 "Carrier" means any supplier or provider of telecommunications
services to Moblix Media for the Services including, without limitation,
any third party aggregator of Calls;
1.4 "Charges" means the charges payable by the Customer
to Moblix Media for Services, as detailed in this Contract;
1.5 "Consumer" means a person who enters into this Contract
other than in the course of business;
1.6 "Contract" means the Order Form together with the
Schedules (including these Standard Terms) as amended from time
to time in accordance with these Standard Terms;
1.7 "Customer" means the party who enters into this Contract
to purchase the Services as set out in the Order Form;
1.8 "ICSTIS" means the Independent Committee for the Supervision
of Telephone Information Services and any similar, additional or
successor body that may be appointed from time to time;
1.9 "Initial Term" has the meaning given in condition
11;
1.10 "Intellectual Property Rights" includes any design
rights, utility models, patents, inventions, designs, service marks,
logos, business names, trade names, trade marks (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;
1.11 "Maintenance" means any work carried out by a Carrier
or by Moblix Media in order to repair, upgrade or maintain the Services;
1.12 "Moblix Media" means Moblix Media Limited, a company
registered in England under number 6318617 whose registered office
is at 7 Hornby Street, Heywood, OL10 1AA.
1.13 "Minimum Use" means, in relation to a telephone number,
the minimum number of Calls which must be made using such telephone
number during the Initial Term or any Subsequent Term(s) as set
out in the Order Form;
1.14 "OFCOM" means the Office of Communications or any
similar, additional or successor office or body that may be appointed
from time to time;
1.15 "Order Commencement Date" means the date specified
as the order commencement date on the Order Form;
1.16 "Order Form" means the signed order form submitted
by the Customer as an offer to purchase the Services and accepted
by Moblix Media;
1.17 "Outpayment" means any sums payable by Moblix Media
to the Customer as set out in the Order Form and in accordance with
condition 20;
1.18 "Premium Rate Service" means any service regulated
by ICSTIS (UK); REGTEL (Republic of Ireland); or other equivalent
body in any country in which the service is operated;
1.19 "Schedules" means the schedules as set out in the
Order Form;
1.20 "Service Description" means a description of the
Services as set out in this Contract or order form;
1.21 "Service Levels" means the contracted minimum levels
of Services, if any, as detailed in the Service Description.
1.22 "Services" means the services to be provided by Moblix
Media pursuant to this Contract;
1.23 "Small Business Customer" means a Customer who uses
the Services in the course of business and who (a) is not a provider
of telecommunications services; and (b) is an undertaking for which
not more than ten people work (whether as employees, contractors
or volunteers);
1.24 "Standard Terms" means the standard terms and conditions
governing the provision of the Services as set out in this Schedule.
1.25 In these Standard Terms, unless the context otherwise requires:
1.25.1 reference to the singular includes the plural and vice versa,
and reference to a gender includes the other gender;
1.25.2 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;
1.25.3 the headings in these Standard Terms are for ease of reference
only and shall not affect its interpretation.
2 SERVICES
2.1 An Order Form submitted by the Customer shall be deemed to be
an offer by the Customer to purchase the Services, which if accepted
by Moblix Media shall form the Contract, to take effect in accordance
with Section 11. For the avoidance of doubt, a price for Services
quoted by Moblix Media does not constitute an offer by Moblix Media
to supply Services.
2.2 Any additional terms, or modifications to these Standard Terms,
shall be agreed in writing between the Customer and a duly authorised
representative of Moblix Media and must be clearly set out in Schedule
7. These Standard Terms shall apply to the exclusion of any variations
or additions contained in any order or other document submitted
by the Customer including any standard conditions of purchase of
the Customer.
2.3 Except where otherwise specified, no change to these Standard
Terms shall be made unless it is agreed in writing by the parties.
2.4 If there is any inconsistency between these Standard Terms and
a provision of any other Schedule or the Order Form, then the Order
Form shall take priority, followed by the applicable Schedule and
then these Standard Terms.
2.5 Nothing in this Contract shall require a Customer to submit,
or Moblix Media to accept, an Order Form.
2.6 These Standard Terms as modified by Schedule 7 in accordance
with condition 2.2 will apply to this Order Form and all future
Order Forms submitted by the Customer, until superseded by alternative
standard terms, as agreed in writing between the Customer and Moblix
Media.
3 SUPPLY OF SERVICES
3.1 Moblix Media shall provide or procure the provision of Services
to the Customer in accordance with the applicable Service Description.
Moblix Media shall exercise reasonable skill and care in providing
the Services to the Customer. The Services cannot be guaranteed
to be fault free and Moblix Media shall not be liable for any fault
or interruption in the provision of the Services caused by a fault
or interruption in telecommunications services provided by a Carrier.
3.2 Moblix Media shall use reasonable endeavours to meet any agreed
dates but shall not be liable for any failure to meet them.
3.3 Moblix Media reserves the right to make any changes to these
Standard Terms or to this Contract (including changes to Services
or Service Description and any Service Levels) as Moblix Media deems
necessary from time to time in order to reflect:
3.3.1 technical and/or operational matters, provided that such change
does not materially affect the applicable Services to the Customer;
and/or
3.3.2 changes to applicable law, regulation or codes of conduct;
and/or
3.3.3 changes to a Carrier's terms and conditions.
3.4 Where Moblix Media consider that it is necessary for technical
or operational reasons, it may, with prior notification to the Customer,
limit the amount of storage space available to the Customer.
3.5 The originator identification that may be sent as part of an
SMS message is not a guaranteed feature and an SMS message may be
sent without any such originator identification.
4 CUSTOMER OBLIGATIONS
4.1 To open an account for usage of the Services, the Customer must
complete the registration process by providing Moblix Media with
current, complete and accurate information as prompted by the Order
Form. The Customer must promptly inform Moblix Media of any change
in the Customer's details. Inaccurate details may result in suspension
of the Services.
4.2 An account name and password will be assigned to the Customer
by Moblix Media. The Customer is entirely responsible for maintaining
confidentiality with regard to the Customer's password and account
information. The Customer is entirely responsible for all activities
that occur under or in connection with the Customer's account.
4.3 Moblix Media reserves the right to alter or withdraw and reissue
a password at any time when Moblix Media reasonably believes, or
when the Customer advises, that security may have been compromised
or when Moblix Media or a Carrier institutes its own password changes
as part of security procedures.
4.4 The Customer agrees to notify Moblix Media immediately if the
Customer becomes aware of any unauthorized use of the Customer's
account or if any other breach of security occurs in relation to
the Customer's account.
4.5 The Customer shall not:
4.5.1 modify the Services without Moblix Media's prior written consent;
or
4.5.2 re-sell, redistribute or copy the Services (or any part thereof),
or transfer rights to the use of the Services to any third party.
4.6 The Customer warrants and undertakes that it will not use the
Services and will ensure that the Services will not be used:
4.6.1 in a way that does not comply with the terms of any legislation
or regulatory provisions including, without limitation, the Data
Protection Act 1998;
4.6.2 in a way that does not comply with the terms of any licence
applicable to the Customer;
4.6.3 in any unlawful or fraudulent way or has any unlawful or fraudulent
purpose or effect;
4.6.4 in connection with the carrying out of a fraud or criminal
offence or other wrong actionable in the UK or elsewhere;
4.6.5 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;
4.6.6 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;
4.6.7 in a way which constitutes a violation or infringement of
the rights of any person, firm or company;
4.6.8 in a way which breaches or is otherwise inconsistent with
any applicable code of practice including, without limitation, any
relevant advertising code of practice or code governing Premium
Rate Services or mobile content; and
4.6.9 in a way that in Moblix Media's reasonable opinion could materially
affect the quality of any services provided by Moblix Media, including
the Services provided to the Customer or services provided to any
third party.
4.7 The Customer shall ensure that any equipment (excluding any
of Moblix Media's equipment) that is used by the Customer in connection
with the Services meets any legal or regulatory requirements and
is relevantly approved.
4.8 The Customer agrees to comply immediately with any request received
from Moblix Media to discontinue any use of the Services (a) if
Moblix Media reasonably considers that such use may materially affect
the quality of any services provided by Moblix Media or a Carrier,
including the Services or any services provided to third parties;
and/or (b) if Moblix Media reasonably believes Services are being
used by the Customer in a manner inconsistent with clause 4.6.
4.9 The Customer agrees to comply with Moblix Media's end-user licence
agreement for any software provided with the Services.
4.10 The Customer is solely responsible for all acts or omissions
that occur through or using the Customer's account or password,
including the content of any transmissions sent or received using
the Services.
5 INDEMNITY
5.1 The Customer agrees to hold harmless, indemnify and keep Moblix
Media and its suppliers (including a Carrier), fully and effectively
indemnified against any and all losses, liabilities, claims, actions,
damages, proceedings, demands, costs, charges and expenses of whatsoever
nature arising from any claim made by a third party in relation
to a breach, alleged breach, or any act or omission by the Customer
in respect of its obligations in condition 4.6 of these Standard
Terms.
5.2 The Customer shall indemnify and keep indemnified Moblix Media
against any losses, claims, damages and expenses that are incurred
by Moblix Media as a result of any infringement or alleged infringement
by the Customer of any Moblix Media Intellectual Property Rights
used in connection with the Services.
5.3 Without prejudice to any other right or remedy, Moblix Media
may recover an amount indemnified by the Customer under this condition
5 or condition 19.9 by deducting such amount from Outpayments.
6 PAYMENT AND CHARGES
6.1 In consideration for Moblix Media providing the Services under
this Contract, the Customer shall pay to Moblix Media the Charges
set out in the Order Form in accordance with this Contract.
6.2 Charges shall be calculated and invoiced in accordance with
the payment terms set out in Schedule 1.
6.3 Moblix Media reserves the right to collect Charges or any other
amount(s) due and payable by the Customer under this Contract by
deducting such Charges or other amount(s) from Outpayments.
6.4 Moblix Media may change the level of Charges or the manner of
their calculation at any time by giving the Customer not less than
30 days notice of such change. If Moblix Media increase the level
of Charges under this clause 6.4, the Customer may terminate this
Contract by giving Moblix Media not less than 30 days notice.
6.5 Without limitation to condition 6.4, Moblix Media may change
the level of Charges or the manner of their calculation with retrospective
effect if such change is the result of:
6.5.1 a direction, determination, order or decision of any government
agency or regulatory body; or
6.5.2 any notice issued by a Carrier amending or introducing a payment
for telecommunications services with retrospective effect.
6.6 Moblix Media reserves the right to undertake reasonable investigations
into the credit worthiness of the Customer following any breach
of this condition 6 or prior to the acceptance of an Order Form.
The Customer shall provide Moblix Media with all assistance and
information reasonably requested by Moblix Media in order to facilitate
such investigations.
7 INTELLECTUAL PROPERTY RIGHTS
7.1 The Customer acknowledges and agrees that it shall have no rights
to any Intellectual Property Rights arising as a result of any use
of the Services.
7.2 Any and all Intellectual Property Rights used or embodied in
or in connection with the Services shall be and remain the sole
property of Moblix Media or Moblix Media's licensors. No title or
Intellectual Property Rights therein or in any modification or extension
thereof shall pass to the Customer.
7.3 For the avoidance of doubt, nothing in conditions 7.1 and 7.2
affects the Intellectual Property Rights that the Customer may have
in any content delivered or received using the Services.
7.4 The Customer acknowledges Moblix Media'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 Moblix Media's trade name or
trade marks.
7.5 Where software (including any manuals or supporting documentation)
is provided to enable the Customer to use the Services, Moblix Media
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.
7.6 Except as permitted by applicable law, the Customer must not,
without Moblix Media’s prior written consent, copy, de-compile
or modify the software nor copy any manuals or documentation provided
with the Services.
8 WARRANTIES
8.1 Except as expressly stated in these Standard Terms, all warranties
and conditions, whether express or implied by statute, common law
or otherwise (including those relating to quality and fitness for
purpose), are excluded to the extent permitted by law.
8.2 Where Moblix Media supplies, in connection with the provision
of the Services, any goods or services supplied by a third party,
including a Carrier, Moblix Media does not warrant or guarantee
the quality, fitness for purpose or otherwise of such goods or services
but shall, where possible and where requested to do so, assign to
the Customer the benefit of any warranty, guarantee or indemnity
given by the person supplying the goods or services to Moblix Media.
9 LIABILITY
9.1 Nothing in this Contract shall exclude or limit:
9.1.1 Moblix Media's liability for death or personal injury caused
by its negligence;
9.1.2 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;
9.1.3 Moblix Media's liability to the Customer for fraud or fraudulent
misrepresentation;
9.1.4 and this condition 9.1 takes precedence over all other conditions
in this Contract.
9.2 Subject to conditions 9.1 and 9.3, Moblix Media'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 pursuant to this
Contract in the 6 month period immediately preceding the month in
which the event giving rise to such claim took place.
9.3 Subject to condition 9.1, Moblix Media 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.
9.4 Moblix Media shall not be liable for any failure of the Service
attributable to any modification (whether by alteration, deletion,
addition or otherwise) to the Service by persons other than Moblix
Media or combination of the Service with other software or equipment
without Moblix Media's express prior written consent.
9.5 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.
9.6 The Customer acknowledges that Moblix Media is unable to exercise
control over any content placed on or accessible through the Customer's
use of the Services and Moblix Media shall have no liability as
to the quality, content or accuracy of such content.
10 VARIATION
In the event that the Customer requires a change to this Contract,
the Customer shall inform Moblix Media in writing. Any changes requested
by a Customer shall not come into effect until a written acceptance
of the proposed change, detailing any consequential amendments to
this Contract (including, without limitation any changes in the
Charges), is issued by a person authorised by Moblix Media.
11 TERM AND DURATION
11.1 This Contract shall commence on the Order Commencement Date
and remain in full force and effect for the duration of this Contract
specified in the Order Form ("Initial Term"). At the expiration
of the Initial Term, this Contract shall automatically renew for
successive 12-month periods (each subsequent period being a "Subsequent
Term") unless terminated in accordance with condition 12.
12 TERMINATION
12.1 Either party may terminate this Contract upon one month's written
notice, with such termination to take effect no earlier than the
date of expiry of the Initial Term.
12.2 Either party may terminate this Contract immediately on written
notice, if the other:
12.2.1 commits a material breach of this Contract, which is capable
of remedy, and fails to remedy the breach within 30 days of a written
notice to do so;
12.2.2 commits a material breach of this Contract which cannot be
remedied; or
12.2.3 is repeatedly in breach of this Contract.
12.3 Either party may terminate this Contract forthwith by notice
in writing to the other party in the event that the other party
ceases or threatens to cease to carry on its business or is unable
to pay its debts as they fall due within the Insolvency Act 2000
or if any action, application or proceeding is made with regard
to it for:
12.3.1 a voluntary arrangement or composition or reconstruction
of its debts;
12.3.2 the presentation of an administrative petition;
12.3.3 its winding-up or dissolution;
12.3.4 the appointment of a liquidator, trustee, receiver, administrative
receiver or similar officer;
12.3.5 any similar action, application or proceeding in any jurisdiction
to which it is subject.
12.3.6 For the avoidance of doubt, neither party shall be entitled
to terminate this Contract pursuant to this condition 12.3 where
a resolution by the other party or court order that the other party
be wound up is for the purpose of a bona fide reconstruction or
amalgamation.
12.4 Moblix Media may terminate this Contract immediately by notice
in writing if the financial position of the Customer deteriorates
to such an extent that in the reasonable opinion of Moblix Media
there is a risk that the Customer may not be able to adequately
fulfil its obligations under this Contract.
12.5 Moblix Media may, at its option, terminate this Contract immediately
upon written notice to the Customer if:
12.5.1 Moblix Media is informed by a Carrier supporting the Services
that the Carrier is required by a competent regulatory body to cease
provision of any telecommunications services which are used in connection
with the Services;
12.5.2 a Carrier supporting the Services ceases to do so for whatever
reason or changes the terms of its provision of telecommunications
services to Moblix Media for the Services and which is beyond the
reasonable control of Moblix Media ; or
12.5.3 the Customer has defaulted in respect of its payment obligations
under this Contract or any other contract between the Customer and
Moblix Media;
12.5.4 the Customer has breached any of the warranties in condition
4.6; or
12.5.5 the Customer has failed to maintain Minimum Use of any telephone
number(s) issued to the Customer by Moblix Media under this Contract.
12.6 Upon termination of this Contract the Customer shall immediately
stop using all Services and the Customer right to use the Services
and any relevant telephone number(s) shall terminate immediately.
12.7 Upon termination of this Contract all Charges which have accrued
prior to termination shall become immediately due and payable by
the Customer.
13 CONSEQUENCES OF TERMINATION
13.1 Termination in accordance with condition 12 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.
13.2 Where Moblix Media terminates in accordance with condition
12.3, the Customer shall
13.2.1 pay a fair and reasonable price for work done which shall
include all costs and liabilities incurred by Moblix Media, including
any additional costs resulting from the termination of the work
and profit; and
13.2.2 return or destroy, at Moblix Media's option, any software,
manuals and/or documentation issued pursuant to clause 7.5.
14 SUSPENSION
14.1 Moblix Media 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. Moblix Media will use reasonable
endeavours to provide prior notice to the Customer of any interruption,
suspension or change provided that, where Moblix Media is unable
to do so, it shall provide such notice as soon as practicable.
14.2 Without prejudice to its right to terminate pursuant to condition
12 above, Moblix Media shall be entitled to immediately suspend
this Contract and/or the provision of any Services:
14.2.1 where required to do so pursuant to law or regulation or
required to do so pursuant to an order of an appropriate regulatory
body;
14.2.2 the Customer is in default of its payment obligations;
14.2.3 the Customer is in default of any of the warranties in condition
4.6; or
14.2.4 telecommunications services required to provide the Services
are suspended by a Carrier for any reason.
14.3 Where the Services are suspended under this condition 14 the
Customer will remain liable for all Charges for the Services until
the effective date of termination.
14.4 For the avoidance of doubt, where Moblix Media exercises it
suspension rights as set on this condition 14, this will not exclude
its right to terminate this Contract later in respect of that or
any other event.
15 USE OF TELEPHONE NUMBERS
15.1 For those Services where the Customer is issued with a telephone
number or numbers to use the Services:
15.1.1 such telephone number(s) are issued to the Customer on the
condition that the Customer maintains Minimum Use of such telephone
number(s);
15.1.2 all rights in the issued telephone number(s) remain vested
in Moblix Media and the Customer does not acquire any rights in
such telephone number(s) by virtue of this Contract;
15.1.3 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;
15.1.4 the telephone number(s) may be changed or decommissioned
from time to time by Moblix Media for operational or technical reasons
or because Moblix Media is required to do so by a Carrier or in
order to comply with any regulatory requirements. Moblix Media will
use reasonable endeavours to give the Customer as much notice of
any such change or decommission as is reasonably practicable. The
Customer acknowledges that changes to telephone number(s) required
to be made to comply with the requirements of a Carrier or regulatory
body are outside Moblix Media's control;
15.1.5 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.
Moblix Media does not warrant, and accepts no liability in relation
to, the availability of any telephone number(s) from overseas countries.
15.2 Where the Customer fails to maintain Minimum Use of any telephone
number(s) over a 12-month period, Moblix Media may withdraw such
telephone number(s) and any associated Services and/or terminate
this Contract in accordance with Condition 12.5.
15.3 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 Moblix Media may then
reissue such telephone number(s) to other Moblix Media customers.
15.4 Unless Moblix Media otherwise agrees in writing, any Calls
must be used within the Initial Term or Subsequent Term in which
such Calls were purchased by the Customer. Any Calls that have not
been used at the expiry or earlier termination of the Initial Term
or Subsequent Term in which they were purchased will be forfeited
by the Customer at no cost to Moblix Media and shall neither be
carried over into any Subsequent Term nor be otherwise transferable,
redeemable or refundable.
15.5 For the avoidance of doubt, any reference to a "telephone
number" in this Contract shall include a short code.
16 FORCE MAJEURE
16.1 Except in relation to payment obligations, neither party shall
be liable for any failure to perform or any delay in performing
its obligations under this Contract if the failure or delay is due
directly or indirectly to any cause beyond the reasonable control
of that party ("Force Majeure"). In the event of failure
or delay arising from such circumstances, the affected party will
provide full details to the other party and shall take all reasonable
steps to mitigate the effect of the delay. Performance of this Contract
shall be suspended for such time as the delay continues.
16.2 The parties shall be released from all obligations under this
Contract if the event of Force Majeure lasts more than 60 days or
renders the continuation or completion of this Contract impossible.
17 DATA PROTECTION
17.1 The Customer warrants that it complies and will comply with
any obligations it has or may have under the Data Protection Act
1998.
17.2 Without limitation to condition 17.1, 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, Moblix
Media, 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.
17.3 Moblix Media 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 Moblix Media 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 Moblix Media or (iii) enforce this Contract or protect the reputation
and business of Moblix Media. The Customer agrees that Moblix Media
may access the Customer's account including its contents, for these
purposes and in order to respond to operational or technical issues.
17.4 Moblix Media 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 Moblix Media deems important
for the Customer.
18 REGULATION
18.1 If, in the reasonable judgement of Moblix Media, any governmental
or regulatory action will make the provision of the Services materially
more expensive or difficult, substantially impaired or impractical,
Moblix Media may terminate or modify this Contract. If it is reasonably
practicable to do so, Moblix Media will provide the Customer prior
written notice of any termination or modification of this Contract
under this condition 18.
19 PREMIUM RATE SERVICES
19.1 This condition 19 applies where the Services are used by the
Customer to provide a Premium Rate Service.
19.2 Moblix Media accepts no liability for any interruption or fault
in Services used by the Customer to provide a Premium Rate Service.
19.3 The Customer shall ensure that the Customer's services and
content are of a high quality and are advertised, promoted, operated
and presented in such a manner as not to bring or be likely to bring
Moblix Media's name into disrepute. Moblix Media's opinion in this
regard shall be final and binding. The Customer shall clearly state
the standard charge for access to the Customer's services on all
promotions.
19.4 The Customer shall be solely responsible for the quality and
content of the Customer's services and for the advertising, marketing
and promotion of such services and shall ensure that it complies
with all applicable laws and regulations (including any applicable
code of practice and regardless of whether such code of practice
would otherwise be legally binding on the Customer). In addition,
the Customer shall ensure that all rights, licences, permissions,
authorisations and consents required for the provision of the Customer's
services are obtained and complied with. The Customer will provide
to Moblix Media evidence of its compliance with this Clause 19.4
on request.
19.5 The Customer shall, prior to the commencement of the Premium
Rate Service, notify Moblix Media in writing as to the general content
of the Premium Rate Service. The Customer acknowledges that Moblix
Media may disclose information concerning the content of any Customer
service or any marketing or promotional materials of the Customer
to the extent that ICSTIS, OFCOM or any other regulatory body requests
such disclosure. The Customer acknowledges that it remains liable
for procuring all necessary consents and approvals for the content
of any service provided by the Customer, notwithstanding any disclosure
of content or services by Moblix Media under this condition 19.5.
19.6 The Customer shall immediately notify Moblix Media if such
Customer becomes aware of any complaint, investigation or enforcement
activity by ICSTIS, OFCOM or any other regulatory body into any
of the Customer's services. If requested by Moblix Media, the Customer
will provide Moblix Media with copies of any correspondence related
to such complaint, investigation or enforcement activity.
19.7 The Customer will comply with any policy relating to content
or the use of telephone number(s) notified to it by Moblix Media
from time to time. The Customer shall not make any inference that
it has received approval in any form from Moblix Media as to the
content of the Customer's service.
19.8 The Customer shall give Moblix Media as much written notice
as possible (being not less than 30 days) prior to undertaking any
marketing or other activities or events which might reasonably be
expected to materially increase the volume of Calls processed using
the Service.
19.9 The Customer shall pay all charges relating to any porting
of numbers between different Carriers.
19.10 The Customer shall indemnify and hold harmless Moblix Media
from and against any and all losses, demands, claims, damages, costs,
expenses and liabilities (including any penalties imposed by ICSTIS,
OFCOM or a regulatory body) incurred by Moblix Media and arising
out of services provided by the Customer, including in connection
with the quality or content of such services or of marketing or
promotional material or from any fraudulent or alleged fraudulent
use (including Artificial Inflation of Traffic) of telephone numbers.
19.11 Without prejudice to any other right or remedy, Moblix Media
may recover an amount indemnified by the Customer under conditions
5 or 19.10 by deducting such amount from future Outpayments.
19.12 Where Moblix Media, in its absolute discretion, considers
that the Customer is or is likely to breach any provision of this
Clause 19, Moblix Media may immediately terminate this Contract
or suspend provision of the Services on notice to the Customer.
19.13 Moblix Media reserve the right to make a charge when failed
Calls represent more than 50% of total Calls in any given month.
This charge will be calculated for each short code or keyword individually
and will be calculated as follows:
19.13.1 Where between 50% and 75% of all Calls on a short code fail,
a charge of 1p per Call over and above the Failed Allowance applies
19.13.2 Where greater than 75% of all Calls on a short code fail,
a charge of 2p per Call over and above the Failed Allowance applies
19.13.3 The Failed Allowance is defined as twice the number of successful
Calls on the short code or keyword
20 OUTPAYMENTS
20.1 This condition 20 shall apply in respect of those Services
which support Premium Rate Services provided by the Customer and
for which Outpayments are agreed between Moblix Media and the Customer
in the Order Form.
20.2 Moblix Media shall notify the Customer on a monthly basis of
the number of Calls processed by Moblix Media during the relevant
month and the telephone number(s) of the Premium Rate Service(s)
to which such Calls relate. Such notification will, subject always
to the timely receipt of all relevant information from the Carrier,
be provided 21 to 30 days after the end of the month in which the
Calls were made. In the event that such information from the Carrier
is delayed beyond this 30 day period then Moblix Media will provide
the information to the Customer within 7 days of the eventual receipt,
by Moblix Media, of such information.
20.3 The Customer shall issue invoices to Moblix Media for Outpayments
on a monthly basis. The Customer shall prepare invoices based upon
the Call information notified by Moblix Media pursuant to condition
20.2. If there is any discrepancy between the Call information notified
by Moblix Media and any similar information maintained by the Customer,
the information notified by Moblix Media shall be used.
20.4 Moblix Media shall pay any invoice for Outpayments, raised
by the Customer pursuant to condition 20.3, within 14 days of receipt
of the Customer’s invoice, subject always to the timely receipt
of the inpayment to Moblix Media from the Carrier in respect of
such Calls. In the event that such inpayment is delayed beyond this
14 day period then Moblix Media will pay the Customer’s invoice
within 7 working days following the eventual receipt of such inpayment.
20.5 The calculation of Outpayments is based upon the rate of inpayments
received by Moblix Media from Carriers. If the cost of any inpayment(s)
increases or decreases at any time, or if there is any other modification
of the method of calculation of inpayments by a Carrier, Moblix
Media reserves the right to increase or decrease Outpayments or
modify the method of calculation proportionately. Moblix Media will
use reasonable endeavours to notify the Customer of any such increase
or decrease in Outpayments or in the method of calculation.
20.6 Moblix Media reserves the right to withhold Outpayments if
any service provided by the Customer is suspected or alleged to
be contrary to any code of practice, fraudulent (including Artificial
Inflation of Traffic), illegal or contrary to any legal or regulatory
requirement, subject to the outcome of a subsequent investigation
which may be commenced by Moblix Media, a Carrier, ICSTIS, OFCOM
or any other regulatory body.
20.7 If a Carrier withholds any inpayment or requires repayment
from Moblix Media of any amount in relation to Calls, Moblix Media
may give notice to the Customer and either:
20.7.1 if no Outpayment(s) have yet been made to the Customer in
relation to such Calls, withhold all or part of such Outpayment(s);
or
20.7.2 if Outpayment(s) have already been made to the Customer in
relation to such Calls, either:
20.7.3 (a) withhold an equivalent amount from any future Outpayment(s)
to the Customer; or
20.7.4 (b) require immediate repayment by the Customer of any Outpayment(s)
paid to such Customer by Moblix Media in respect of such Calls,
20.7.5 provided that, in each case, any amounts withheld by Moblix
Media or repaid by the Customer are promptly released or returned
to the Customer when and to the extent that a Carrier releases or
returns a relevant payment to Moblix Media.
20.8 Moblix Media may, if directed or requested by ICSTIS, OFCOM
or any other regulatory body: (a) withhold all or part of any Outpayment
otherwise due to the Customer or (b) pay or transfer all or part
of any Outpayment otherwise due to the Customer to ICSTIS, OFCOM,
any other regulatory body or third party.
20.9 Outpayments for a month shall be payable by Moblix Media only
where total Outpayments in the month equal or exceed £50.00
(excluded VAT). For the avoidance of doubt, where total Outpayments
at the end of a billing month are less than £50.00 (excluding
VAT) all Outpayments for that month shall be forfeited by the Customer
and shall not be carried forward into any subsequent month.
20.10 Outpayments will cease to be payable with immediate effect
upon termination of this Contract by Moblix Media for any reason.
Any accrued Outpayments will be paid to the Customer, less any costs
or losses incurred by Moblix Media as a result of termination.
21 CONSUMERS
21.1 Where the Customer is purchasing the Services as a Consumer
the exclusion of the implied terms in condition 8 will not apply.
21.2 A Customer who is a Consumer or Small Business Customer may
refer any complaint or dispute under this Contract to the Office
of the Telecommunications Ombudsman.
22 THIRD PARTY RIGHTS
22.1 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.
23 LAW
23.1 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.
24 GENERAL
24.1 Any notice given by one party to the other under these this
Contract must be in writing and may be delivered personally or by
prepaid post and in the case of post will be deemed to have been
given two working days after the date of posting. Notices shall
be delivered or sent in the case of Moblix Media to the address
in the definitions section of the Order Form or to any other address
notified in writing to the Customer for the purpose of receiving
notices after the Order Commencement Date. In the case of the Customer,
notices must be sent to the address supplied to Moblix Media by
the Customer from time to time. Each party may specify by notice
to the other a particular individual or office holder to whom any
notices served on it are to be addressed, in which case a notice
shall not be validly given unless so addressed.
24.2 No forbearance or delay by either party in enforcing its rights
will prejudice or restrict the rights of that party, and no waiver
of any such rights or of any breach of any contractual terms will
be deemed to be a waiver of any other right or any later breach.
24.3 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 as if this
Contract had been executed without the invalid, illegal or unenforceable
provisions. In the event that a fundamental provision of this Contract
is held invalid, the Customer and Moblix Media shall immediately
commence good faith negotiations to remedy such invalidity.
24.4 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 Moblix Media.
24.5 Moblix Media 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.
24.6 The parties acknowledge and agree that this Contract is not
intended to create a joint venture or partnership of any kind that
would impose liability upon one party for the act or failure to
act of the other party or to authorise either party to act as agent
for the other and neither party shall have the right to make representations,
act in the name or on behalf of or otherwise bind the other without
the other’s express prior written consent.
24.7 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.
24.8 Each party acknowledges that, in entering into this Contract,
it does not rely on any representation, warranty or other provisions
except as expressly provided in this Contract.
24.9 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 Moblix Media than the rights which Moblix Media
has against such Carrier in respect of a Service.
Schedule 1
Payment Terms
All monthly Charges will be calculated in
accordance with details of the use of the Service recorded by, or
on behalf of, Moblix Media. Payment of monthly Charges must be made
to Moblix Media within fourteen (14) calendar days of the date of
the invoice being issued by Moblix Media (the "Due Date").
Interest shall accrue on any overdue invoice
from the Due Date until payment is made in full at the annual rate
of 5% per annum above the base-lending rate from time to time of
The Royal Bank of Scotland Plc. Interest shall accrue notwithstanding
termination for whatever reason under the Standard Terms.
Unless stated otherwise all Charges exclude
Value Added Tax (VAT) at the applicable rate and any other similar
sales tax or duty which if applicable, shall be paid by the Customer.
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 Moblix Media 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 Moblix Media or its financial
institution.
In the event that Moblix Media 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.
2. Payment by other means
In the event that the Customer elects to pay
Charges other than by means of direct debit, payment of all Charges
must be received by Moblix Media no later than 5:00pm on the Due
Date.
End-User License Agreement for Moblix Media
Software
PLEASE READ THIS CAREFULLY BEFORE YOU DOWNLOAD
THE SOFTWARE
YOUR RIGHT TO USE THIS SOFTWARE PRODUCT IS SUBJECT TO THE TERMS
SET OUT IN THIS END-USER LICENCE AGREEMENT ("EULA"). IF
YOU DO NOT ACCEPT OR UNDERSTAND THEM, YOU SHOULD NOT USE THE SOFTWARE
AND CONTACT Moblix Media (EMAIL CONTACT@Moblix Media.COM) FOR CLARIFICATION
OF ANY QUESTIONS.
Reference in this EULA to "Software" shall, where the
context permits, also include the media upon which it is stored
and any related printed materials (manuals and other documents)
which at the discretion of Moblix Media may be made available from
time to time ("Documentation").
Terms and Conditions.
25 OWNERSHIP.
All right, title and interest in and to the Software and the Documentation
(including all copyright and other intellectual property rights
therein) are owned by Moblix Media or its suppliers. The licence
granted under the EULA is not a sale of any rights in the Software.
26 GRANT OF LICENSE.
26.1 Moblix Media grants you a non-exclusive license to install
and use the Software on your computer and to transfer the software
from one computer to another provided that the Software is installed
and used on one computer at any one time. Moblix Media further grants
you a licence to make one copy only of the Software solely for archival
and back-up purposes.
26.2 Other than as expressly permitted by Section 2.1 above, or
where you have a right at law to do so (and such right cannot lawfully
be excluded) you may not (i) make any copies of the Software or
Documentation (ii) modify the Software or Documentation, (iii) reverse
engineer, disassemble, decompile or use the Software or Documentation
to create any derivative work, or (iv) rent, sub-licence, transfer
(other than in accordance with section 3) or lease the Software.
26.3 Each copy of the Software you made in accordance with this
EULA shall also reproduce all copyright and intellectual property
right notices from the original.
27 TRANSFER.
You may permanently transfer the Software to any person, provided
that when you transfer the Software, you must also transfer and
deliver to such person any upgrades and all Documentation provided
to you by or on behalf of Moblix Media and, provided also that such
person confirms to Moblix Media its acceptance of this EULA with
respect to such Software and Documentation. Notwithstanding the
foregoing, you must not deliver to such person any copy of the Software
made by you in accordance with this EULA. Upon transfer your licence
automatically terminates and you must erase all copies of the Software
made by you and/or all copies that are contained on any computer
within your possession or under your control. The warranty is not
transferable.
28 LIMITED WARRANTY.
28.1 Moblix Media WARRANTS THAT THE SOFTWARE WILL WHEN SUBJECTED
TO NORMAL CONDITIONS PERFORM SUBSTANTIALLY IN ACCORDANCE WITH ITS
SPECIFICATIONS AS DEFINED BY Moblix Media AND THAT ANY MEDIA UPON
WHICH SUCH SOFTWARE IS STORED WILL BE FREE FROM DEFECTS IN MATERIALS
AND WORKMANSHIP ("WARRANTY"). THE WARRANTY WILL BE EFFECTIVE
FOR A PERIOD OF 90 DAYS ("WARRANTY PERIOD") FROM THE DATE
YOU FIRST RECEIVE THE SOFTWARE. IF THE SOFTWARE WHEN SUBJECTED TO
NORMAL CONDITIONS FAILS TO PERFORM SUBSTANTIALLY IN ACCORDANCE WITH
ITS SPECIFICATIONS AS DEFINED BY Moblix Media OR IF THE MEDIA UPON
WHICH THE SOFTWARE IS STORED FAILS TO BE FREE FROM DEFECTS IN MATERIALS
AND WORKMANSHIP AND YOU MAKE A CLAIM DURING THE WARRANTY PERIOD
Moblix Media WILL REPLACE THE SOFTWARE WITH SOFTWARE THAT COMPLIES
WITH THE WARRANTY. THIS WARRANTY IS ONLY OFFERED TO THE FIRST END-USER
THAT LICENCES THE SOFTWARE.
28.2 THE REPLACEMENT OF THE SOFTWARE BY Moblix Media PURSUANT TO
SECTION 4.1 IS YOUR SOLE AND EXCLUSIVE REMEDY UNDER THE WARRANTY.
28.3 YOU WILL BE INELIGIBLE TO MAKE A CLAIM UNDER THIS WARRANTY
IF ANY DEFECT IN OR FAILURE OF THE SOFTWARE IS CAUSED BY (I) AN
ACCIDENT, LOSS OR DAMAGE TO THE MEDIA OR THE SYSTEM UPON WHICH THE
SOFTWARE IS STORED, (II) IMPROPER OR INADEQUATE MAINTENANCE OR CALIBRATION,
(III) DAMAGE FROM CONNECTION OR MERGER WITH ANY SOFTWARE, APPARATUS
OR OTHER MATERIAL NOT SUPPLIED BY Moblix Media, OR (IV) MODIFICATION
OR ALTERATION TO THE SOFTWARE BY YOU OR ANYONE ELSE.
28.4 NO WARRANTIES OR CONDITIONS EITHER EXPRESS OR IMPLIED STATUTORY
OR OTHERWISE AS TO CONDITION, QUALITY, OR PERFORMANCE, INCLUDING
BUT NOT LIMITED TO WARRANTIES AS TO SATISFACTORY QUALITY OR FITNESS
FOR PURPOSE OF THE SOFTWARE (OR WITH RESPECT TO NON-INFRINGEMENT
OF ANY RIGHTS OF ANY THIRD PARTY) ARE GIVEN OR ASSUMED BY Moblix
Media OTHER THAN AS SET OUT IN SECTION 4.1, AND ALL SUCH WARRANTIES
AND CONDITIONS ARE HEREBY EXPRESSLY EXCLUDED EXCEPT TO THE EXTENT
THAT SUCH EXCLUSION IS PROHIBITED BY LAW. WITHOUT LIMITATION TO
THE GENERALITY OF THE FOREGOING, Moblix Media DOES NOT WARRANT THAT
THE SOFTWARE WILL BE ERROR FREE OR THAT IT WILL OPERATE WITHOUT
INTERRUPTION OR WILL MEET YOUR REQUIREMENTS. THE WARRANTY IS THE
ONLY WARRANTY GIVEN BY Moblix Media WITH RESPECT TO THE SOFTWARE.
HOWEVER THIS SECTION 4 SHALL BE WITHOUT PREJUDICE TO ANY RIGHTS
AFFORDED TO YOU BY ANY LAW APPLICABLE TO THIS EULA WHERE THE EXCLUSION
OF SUCH RIGHTS IS UNLAWFUL.
29 EXCLUSION AND LIMITATION OF LIABILITY.
29.1 Moblix Media SHALL HAVE NO LIABILITY IN CONTRACT, TORT (INCLUDING
NEGLIGENCE OR BREACH OF STATUTORY DUTY) OR OTHERWISE FOR ANY INTERRUPTION
OF USE, LOSS OF DATA, OR FOR ANY INDIRECT, INCIDENTAL, PUNITIVE
OR CONSEQUENTIAL LOSS OR DAMAGE, OR FOR ANY LOSS OF PROFIT, REVENUE,
DATA, GOODWILL OR ANTICIPATED SAVINGS THAT ARISES UNDER, OUT OF,
OR IN CONTEMPLATION OF THIS EULA OR OTHERWISE ARISES DUE TO ANY
ERROR, INACCURACY OR DEFECT IN THE SOFTWARE EVEN IF Moblix Media
HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSS OR DAMAGE.
29.2 Moblix Media'S LIABILITY FOR ALL LOSS OR DAMAGE UNDER THIS
EULA (EXCEPT FOR LOSS AND DAMAGE VALIDLY EXCLUDED BY SECTION 5.1)
SHALL BE LIMITED TO THE PRICE THAT YOU PAID TO LICENSE THIS SOFTWARE
OR WHERE THE LICENCE WAS PROVIDED FREE OF CHARGE Moblix Media'S
LIABILITY SHALL BE LIMITED TO THE COST OF REPLACING THE SOFTWARE.
29.3 THESE LIMITATIONS AND EXCLUSIONS OF LIABILITY SET OUT IN THIS
SECTION 5 SHALL NOT APPLY TO THE EXTENT THAT ANY SUCH LIMITATION
OR EXCLUSION CONTRAVENES ANY LAW APPLICABLE TO THIS EULA.
29.4 FOR THE AVOIDANCE OF DOUBT NOTHING HEREIN CONTAINED SHALL BE
DEEMED TO EXCLUDE OR RESTRICT Moblix Media'S LIABILITY FOR DEATH
OR PERSONAL INJURY ARISING DUE TO Moblix Media'S NEGLIGENCE.
30 TERM AND TERMINATION.
This Agreement will become effective upon your acceptance and shall
continue in effect unless you transfer the Software in accordance
with the EULA and the transferee undertakes to Moblix Media to be
bound by this EULA with respect to the Software.
However, Moblix Media may terminate this EULA without notice if
you breach any of its provisions.
Upon termination you must erase all copies of the Software made
by you and all copies that are contained on any computer within
your possession or under your control.
31 EXPORT REGULATIONS.
You may not export or re-export the Software or any copy or adaptation
thereof in violation of any applicable laws or regulations.
32 GOVERNING LAWS.
This EULA is governed by the laws of England, and the English Courts
and shall have exclusive jurisdiction with respect to this EULA,
except with regard to enforcement, in which case the jurisdiction
of the English Courts shall be non-exclusive.
33 ILLEGALITY.
If any of the provisions of this EULA shall be declared illegal
or unenforceable in whole or in part such provision shall be severable
and independent from the other provisions of this EULA, and the
validity of the other provisions and of the entire EULA shall not
be affected.
34 THIRD PARTY RIGHTS.
The provisions of this EULA are intended only to have effect between
Moblix Media and yourself and are not intended to confer any benefit
or right of enforcement upon any other person.
35 PERSONAL LICENCE.
The rights granted by Moblix Media hereunder are personal to you
and you shall not be permitted to assign, transfer, novate or otherwise
make over to any third party the Software (or the Documentation)
or the benefit or burden of this EULA or any of the rights granted
hereunder other than as expressly permitted by Section 3.
Optional provision to be used in countries where any attempt to
exclude or limit liability for death or personal injury caused by
negligence is unlawful.
|
