1. THE AGREEMENT
The ExcelSend Service ("Service(s)"), owned and operated by DiaryBook Limited, trading as DiaryBook, is provided to you ("Member") under this agreement and any operating rules, policies, price schedules, or other supplemental documents which are expressly incorporated herein by a reference in this agreement and published from time to time by DiaryBook. This agreement (which includes such expressly incorporated supplemental documents) comprises the entire agreement between Member and DiaryBook and supersedes all prior agreements between the parties regarding the subject matter contained herein. Notwithstanding the foregoing, Members use of any software which is provided by DiaryBook and may be related to the Service(s) shall be pursuant to a separate agreement governing Member's use of such software.
BY COMPLETING THE REGISTRATION PROCESS AND CLICKING THE "I ACCEPT" BUTTON, YOU ARE INDICATING YOUR AGREEMENT TO BE BOUND BY ALL OF THE TERMS AND CONDITIONS OF THIS AGREEMENT, INCLUDING, BUT NOT LIMITED TO, USE OF THE SERVICES IN COMPLIANCE WITH SECTION 11, MEMBER CONDUCT.
2. DESCRIPTION OF SERVICES
DiaryBook is providing Member with a capability to store contact and appointment records and to transmit and receive SMS text messages to their contacts. In consideration for the Service(s), Member agrees to: (1) provide certain limited information about Member as prompted to do so by the Service (such information to be current, complete and accurate) and (2) maintain and update this information as required to keep it current, complete and accurate. The information requested on original sign up shall be referred to as registration data ("Registration Data"). Although DiaryBook will take reasonable measures to exclude Member's name, mailing address, email address, account and phone number from any disclosures, DiaryBook may (i) as Member expressly directs DiaryBook, release Member's email address to any other person Member may specifically designate. Notwithstanding the foregoing, due to the existing legal and regulatory environment, DiaryBook cannot ensure that Member's personally identifiable information or Member's private communications will not be disclosed to third parties. By way of example (without limiting the foregoing), DiaryBook may be forced to disclose information to the government or third parties under certain circumstances, or third parties may unlawfully intercept or access transmissions or private communications. Further, DiaryBook can (and Member hereby authorizes DiaryBook to) disclose Registration Data or any information about Member to law enforcement or other government officials as DiaryBook, in its sole discretion, believes necessary or appropriate. Therefore, DiaryBook does not promise, and Member should not expect, that personally identifiable information or private communications will always remain private.
2.1 TERMS OF SERVICE
If the Member is cleared for credit then the Member will adhere to DiaryBook's 30 days credit term and will not allow any amounts remain outstanding beyond this period measured by date of invoice. Members who are not cleared for credit must pay in advance by Credit Card, cheque or money transfer.
The DiaryBook privacy policies, which are incorporated herein by this reference, are available at http://www.diarybook.co.uk/privacy . By accepting this Agreement, Member expressly consents to disclosures of Member's personal identification and other personal information to third parties, and to DiaryBook's use of Member's information, as enumerated in DiaryBook's then-current privacy policies. Although DiaryBook acts as a passive conduit for Member to receive and send information of Member's own choosing, Member acknowledges and agrees that certain technical processing of, and access to SMS text messages and their content may be required to: (1) route the messages; (2) conform to connecting networks' technical requirements; (3) conform to the limitations of the Service; (4) prevent or minimize disruptions to the Service; or (5) conform to other similar requirements. DiaryBook may send to Member periodic emails containing information about DiaryBook, updates on new Service features, Service usage tips, information about third party services that are likely to be of interest to DiaryBook members, and member satisfaction questions. Currently, DiaryBook estimates that it will send about 1-2 such emails per quarter. If Member does not want to receive these emails, at any time Member may cancel his/her Service pursuant to the terms of this Agreement by notifying DiaryBook. In addition to the periodic emails, DiaryBook may use Member's email address to send to Member administrative notices about Member's account (such as notices about account balances).
4. MODIFICATIONS TO TERMS OF SERVICE AND PRIVACY POLICIES
DiaryBook may automatically amend this Agreement or its privacy policies at any time by (i) posting a revised DiaryBook Terms of Service document or privacy policies document on the DiaryBook World Wide Web site, and/or (ii) sending information regarding the Agreement or privacy policies amendment to the email address Member provides to DiaryBook. Member is responsible for regularly reviewing the DiaryBook World Wide Web site to obtain timely notice of such amendments. Member's continued use of Member's membership account after such amended terms or policies have been posted or information regarding such amendment has been sent to Member shall be deemed acceptance by Member of the amended Agreement or privacy policies. Otherwise, this Agreement and the privacy policies may not be amended except in writing signed by both parties.
5. MODIFICATIONS TO SERVICE
DiaryBook reserves the right to modify or discontinue the Service with or without notice to Member. DiaryBook shall not be liable to Member or any third party should DiaryBook exercise its right to modify or discontinue the Service.
6. MEMBER ACCOUNT, PASSWORD, AND SECURITY
As part of the registration process, Member shall be required to provide an email address. Once Member becomes a member of the Service, an activation code will be automatically sent to Member by email. Once the account is activated the Member may change certain details of the account by accessing the My Account section of the web site. Member is entirely responsible if Member does not maintain the confidentiality of Member's password, fax number and account information. Furthermore, Member is entirely responsible for any and all activities which occur under Member's account. Member agrees to immediately notify DiaryBook of any unauthorized use of Member's account or any other breach of security known to Member. MEMBER UNDERSTANDS AND AGREES THAT MEMBER IS NOT THE OWNER OF ANY SMS TEXT NUMBER ASSIGNED TO MEMBER BY DiaryBook. ALL SUCH TEXT NUMBERS ARE OWNED SOLELY BY DiaryBook. MEMBER UNDERSTANDS AND AGREES THAT FOLLOWING THE TERMINATION OF SERVICE FOR ANY REASON, SUCH TEXT NUMBERS MAY BE RE-ASSIGNED IMMEDIATELY TO ANOTHER MEMBER AND MEMBER AGREES THAT DiaryBook WILL NOT BE LIABLE FOR ANY DAMAGES WHATSOEVER (INCLUDING BUT NOT LIMITED TO DIRECT, INDIRECT, CONSEQUENTIAL OR SPECIAL DAMAGES) ARISING OUT OF ANY SUCH RE-ASSIGNMENT, AND MEMBER HEREBY WAIVES ANY CLAIMS WITH RESPECT TO ANY SUCH RE-ASSIGNMENT, WHETHER BASED ON CONTRACTUAL, TORT OR OTHER GROUNDS, EVEN IF DiaryBook HAS BEEN ADVISED OF THE POSSIBILITY OF DAMAGES.
7. DISCLAIMER OF WARRANTIES
MEMBER EXPRESSLY AGREES THAT USE OF THE SERVICE IS AT MEMBER'S SOLE RISK. THE SERVICE IS PROVIDED ON AN "AS IS" AND "AS AVAILABLE" BASIS. DiaryBook EXPRESSLY DISCLAIMS ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. DiaryBook MAKES NO WARRANTY THAT THE SERVICE WILL MEET MEMBER'S REQUIREMENTS, OR THAT THE SERVICE WILL BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR FREE; NOR DOES DiaryBook MAKE ANY WARRANTY AS TO THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE SERVICE OR AS TO THE ACCURACY OR RELIABILITY OF ANY COMMUNICATIONS OR TRANSMISSIONS, OR THE ACCURACY OF ANY TRANSLATION OR ALTERATION OF MEMBER'S TRANSMISSIONS OR DATA, OR THE ACCURACY OF ANY INFORMATION OBTAINED THROUGH THE SERVICE, OR THE ACCURACY OR RELIABILITY OF ANY FILTERING TECHNOLOGY USED IN CONNECTION WITH THE SERVICE, OR THAT DEFECTS IN THE SOFTWARE WILL BE CORRECTED. MEMBER UNDERSTANDS AND AGREES THAT ANY MATERIAL AND/OR DATA DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF THE SERVICE IS DONE AT MEMBER'S OWN DISCRETION AND RISK AND THAT MEMBER WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO MEMBER'S COMPUTER SYSTEM OR LOSS OF DATA THAT RESULTS FROM THE DOWNLOAD OF SUCH MATERIAL AND/OR DATA. DiaryBook MAKES NO WARRANTY REGARDING ANY GOODS OR SERVICES PURCHASED OR OBTAINED THROUGH THE SERVICE OR ANY TRANSACTIONS ENTERED INTO THROUGH THE SERVICE. DiaryBook ASSUMES NO RESPONSIBILITY FOR THE DELETION OR FAILURE TO STORE FAX, EMAIL AND SMS TEXT MESSAGES. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY MEMBER FROM DiaryBook OR THROUGH THE SERVICE SHALL CREATE ANY WARRANTY NOT EXPRESSLY MADE HEREIN. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES, SO SOME OF THE ABOVE EXCLUSIONS MAY NOT APPLY TO MEMBER.
8. LIMITATION OF LIABILITY
IN NO EVENT SHALL DiaryBook OR ITS SUPPLIERS BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES, RESULTING FROM THE USE OR THE INABILITY TO USE THE SERVICE OR FOR COST OF PROCUREMENT OF SUBSTITUTE GOODS AND SERVICES OR RESULTING FROM ANY GOODS OR SERVICES PURCHASED OR OBTAINED OR MESSAGES RECEIVED OR TRANSACTIONS ENTERED INTO THROUGH THE SERVICE OR RESULTING FROM UNAUTHORIZED ACCESS TO OR ALTERATION OF MEMBER'S TRANSMISSIONS OR DATA, INCLUDING BUT NOT LIMITED TO, DAMAGES FOR LOSS OF PROFITS, USE, DATA OR OTHER INTANGIBLE, EVEN IF DiaryBook HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. DiaryBook'S LIABILITY TO MEMBERS OR ANY THIRD PARTIES IS LIMITED TO €50. SOME JURISDICTIONS DO NOT ALLOW THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES SO SOME OF THE ABOVE LIMITATIONS MAY NOT APPLY TO MEMBER.
9. NO RESALE OR COMMERCIAL USE OF THE SERVICE
Member's right to use the Service is personal to Member. Member may be either an individual or a corporation or business entity, but Member agrees not to resell the use of the Service unless given explicit written permission to do so..
9.1. SERVICES PROVIDED BY OTHER SERVICE PROVIDERS
DiaryBook offers the Service to its Members as a capability, consistent with the terms and conditions hereof, for generating, acquiring, storing, transforming, processing, retrieving, broadcasting, utilizing or making available information via telecommunications services purchased from telecommunications carriers ("Carriers") and information services purchased from other ISPs. DiaryBook does not provide or resell telecommunications services, but where necessary may obtain and integrate telecommunications services from Carriers as part of the Service it offers to its Members.
10. FAIR USAGE POLICY
DiaryBook has set no fixed upper limit on the number of SMS messages a Member may send or receive through the Service, however, Member shall take no actions which impose an unreasonable or disproportionately large load on DiaryBook resources (as determined by DiaryBook in light of the load imposed by other Members generally).
11. MEMBER CONDUCT
Member is solely responsible for the contents of his or her transmissions through the Service, and, as stated above, DiaryBook simply acts as a passive conduit for Member to receive and send information of Member's own choosing. However, DiaryBook reserves the right to take any action with respect to the Services that DiaryBook deems necessary or appropriate in DiaryBook's sole discretion if DiaryBook believes Member or Member's information may create liability for DiaryBook, compromise or disrupt the Service for Member or other DiaryBook members, or cause DiaryBook to lose (in whole or in part) the services of DiaryBook's ISPs or other suppliers. Member's use of the Service is subject to all applicable local, national and international laws and regulations (including without limitation those governing account collection, export control, consumer protection, unfair competition, anti-discrimination or false advertising). Member agrees: (1) to comply with Irish law regarding the transmission of technical data exported from the Ireland through the Service; (2) not to use the Service for illegal purposes; (3) not to interfere or disrupt networks connected to the Service; (4) to comply with all regulations, policies and procedures of networks connected to the Service; (5) not to use the Service to infringe any third party's copyright, patent, trademark, trade secret or other proprietary rights or rights of publicity or privacy; and (6) not to transmit through the Service any unlawful, harassing, libellous, abusive, threatening, harmful, vulgar, obscene or otherwise objectionable material of any kind or nature. Member further agrees not to transmit any material that encourages conduct that could constitute a criminal offence, give rise to civil liability or otherwise violate any applicable local, state, national or international law or regulation. The Service makes use of the Internet for Member to receive information of Member's own choosing; therefore, Member's conduct is subject to Internet regulations, policies and procedures.
Member agrees to indemnify and hold DiaryBook, its parents, subsidiaries, affiliates, officers and employees, harmless from any claim or demand, including reasonable legal fees, made by any third party due to or arising out of Member's use of the Service, the violation of this Agreement by Member, or the infringement by Member, or other user of the Service using Member's computer, of any intellectual property or other right of any person or entity.
DiaryBook may immediately terminate Member's membership and right to use the Service (1) if Member breaches this Agreement, (2) if DiaryBook is unable to verify or authenticate any information Member provides to DiaryBook, (3) if such information is inaccurate or, (4) if DiaryBook decides, in its sole discretion, to discontinue offering the Service. DiaryBook shall not be liable to Member or any third party for termination of Service. Member may terminate the Service with or without cause at any time and effective immediately by written notice to DiaryBook. Should Member object to any terms and conditions of the Agreement or any subsequent modifications thereto or become dissatisfied with the Service in any way, Member's only recourse is to immediately: (1) discontinue use of the Service; (2) terminate Service membership; and (3) notify DiaryBook of termination. Upon termination of the Service, Member's right to use the Service immediately ceases. Member shall have no right and DiaryBook will have no obligation thereafter to forward any unread or unsent messages to Member or any third party. DiaryBook reserves the right to refuse the Service to any Member who has cancelled any number of previous Service accounts.
14. PARTICIPATION IN PROMOTIONS OF ADVERTISERS
Member may enter into correspondence with or participate in promotions of the Advertisers showing their products on the Service. Any such correspondence or promotions, including the delivery of and the payment for goods and services, and any other terms, conditions, warranties or representations associated with such correspondence or promotions, are solely between the corresponding Member and the Advertiser. DiaryBook assumes no liability, obligation or responsibility for any part of any such correspondence or promotion.
15. PROPRIETARY RIGHTS TO CONTENT
Member acknowledges that content, including but not limited to text, software, music, sound, photographs, video, graphics or other material contained in either sponsor advertisements or email-distributed, commercially produced information presented to Member by the Service ("Content") by DiaryBook or DiaryBook's Advertisers, is protected by copyrights, trademarks, service marks, patents or other proprietary rights and laws; therefore, Member is only permitted to use this Content as expressly authorized by the Service or the Advertiser. Member may not copy, reproduce, distribute, or create derivative works from this Content without expressly being authorized to do so by the Service or the Advertiser.
16. GENERAL TERMS
This Agreement shall be governed by and construed in accordance with the laws of Ireland (excluding laws governing the conflict of laws) and the parties submit to the jurisdiction of the Irish Courts. This will not prevent DiaryBook from pursuing a claim for breach of contract, copyright infringement or otherwise in respect of this Agreement, the Service, or the Data in any other jurisdiction throughout the world. DiaryBook's failure to act with respect to a breach by Member or others does not waive DiaryBook's right to act with respect to subsequent or similar breaches. Member may not assign or transfer this Agreement or any rights hereunder, and any attempt to the contrary is void. DiaryBook shall not be liable for any delay or failure to perform resulting directly or indirectly from any causes beyond DiaryBook's reasonable control. Member agrees that DiaryBook may communicate with Member via email and any similar technology for purposes relating to Member's membership or the Service and any other services provided or which may in the future be provided by DiaryBook or on DiaryBook's behalf. This Agreement sets forth the entire understanding and agreement between the parties with respect to the subject matter hereof. The Service hereunder is offered by DiaryBook, located at Unit 6 Tallaght Business Park, Whitestown Road, Tallaght, D24 E729, Ireland. DiaryBook's phone number is (353 1) 287 3077.
17 SMS TEXT SERVICE TERMS
The customer agrees that, by definition, access to the Internet, the GSM network and other communication media is associated with risks concerning authentication, data security, privacy, availability of services, reliability of transmission etc. - The customer agrees to bear full and exclusive responsibility arising from such risks and consequences of the customer's usage of DiaryBook services.
The customer acknowledges that DiaryBook delivers SMS messages via major telecommunications companies and mobile network providers and can therefore only influence the transmission and delivery of SMS messages within the technical constraints imposed by the abovementioned providers.
SMS messages submitted via the Service will be transferred to the addressed mobile recipients within seconds to minutes, provided that the recipient's phone is switched on and located in an area covered by his subscribed mobile network provider. The customer acknowledges that, depending on the recipient's mobile provider service, it may not be possible to transmit the SMS message to the recipient successfully, particularly if the provider does not support SMS delivery at all.
17.3. LARGE VOLUME TRANSMISSION
The customer acknowledges that transmission of large SMS amounts (> 100,000 messages per day) may be subject to restrictions and delays on the part of the mobile network providers affected. The customer agrees to communicate his intent to transmit such volumes to DiaryBook at least 5 business days in advance in order to ensure that such delivery can take place without disruptions.
SMS messages are assigned a life time of 72 hours. SMS messages which could not be delivered successfully to the recipient's mobile phone within this period will be discarded without notice.
17.5. SMS CONTENT
The customer assumes full responsibility for the content of SMS messages transmitted by the customer or by a third party on the customer's behalf.
The customer agrees to abide to all laws and regulations applicable to the content and intent of SMS messages transmitted by him. The customer assumes liability for all consequences and costs arising out of offences against such regulations.
The customer must ensure that the SMS delivery does not cause disturbance or harassment of a recipient or other third party. The customer agrees to refrain from sending SMS messages containing offensive, violent, pornographic, or discriminatory, or otherwise illegal content.
The customer is not permitted to send SMS messages to recipients who have made it clear that they do not wish to receive SMS messages or advertisements via SMS.
The customer agrees to indemnify and hold DiaryBook, and its subsidiaries, affiliates, officers, agents, co-branders or other partners, and employees, harmless from any claim or demand, including reasonable attorneys' fees, made by any third party due to or arising out of Content the customer transmits through the Service, the customer's use of the Service, the customer's connection to the Service, the customer's violation of the Terms of Usage, or the customer's violation of any rights of another.
17.6. INDENTIFICATION OF SMS ORIGINATOR
The customer must specify for each SMS message which it wishes DiaryBook to transmit a numeric or alpha-numeric originator containing information about the customer and his services. DiaryBook will not deliver SMS messages without originator information or with misleading originator information.