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Celebrity Messages Agreement 1. Introduction. This Agreement is a legal document which sets out your rights and obligations, and those of Big Red Carpet Celebrity Messaging Limited ("we" or "us"), in relation to this site and the services offered by us through it (the “Celebrity Messages Service"). You must take the time to read and understand it before registering for the Celebrity Messages Service. By registering, you accept that you are entering into a contract with us on the terms of this Agreement. You should be aware that this Agreement may change from time to time in accordance with Clause 23 below. 2. Becoming a User. Anybody who uses the Celebrity Messages Service is referred to as a “User” in this document. Users can select either to send an individual message (or a group of messages) or to register with us to establish an "Account". All Users must be legally entitled to contract for and use the Celebrity Messages Service. Where the User is a limited company, partnership or other entity (an “entity”), you undertake that: a. you are entitled to enter into this Agreement on behalf of the entity, b. the entity will be bound to this Agreement in the same way as you, and c. this Agreement will accordingly be enforceable both against you and the entity. 3. Charges and messages. a. By becoming a User, you are agreeing to pay for messages sent through the Celebrity Messages Service. Details of our charges for sending the messages will be notified to you when you register for the Celebrity Messages Service and subsequently, in accordance with this Agreement. We will take payment from the credit card, bank or other account of which you provide details. b. Charges will be debited when the User clicks to send the message. By doing so, the User agrees to us sending the message as soon as we practicably can, and consequently the User will not have the right to cancel during the seven working day cooling-off period which is provided for certain purchases under the Consumer Protection (Distance Selling) Regulations 2000. [For the right to cancel in-credit Accounts, see Clause 4 below.] c. It is up to the User to ensure that each message is correctly addressed and sent, and that the intended recipient is able to receive the message, whether it is sent by email, multimedia messaging service (MMS or WAP) or any other means we may make available. Before you send a message, you must read the relevant part of our Frequently Asked Questions (FAQs) to ensure that this is the case – our FAQs are available at [insert link to help section] d. Because our suppliers (whether of connectivity, technology or content) reserve the ability to increase costs to us, please note that we reserve the right to increase the charges to be paid for sending messages. When a User sends a message, the charge for doing so will be made clear. e. Users who hold an Account that is in credit will be given at least ten days’ notice of an increase, and if the User does not wish to be bound by that increase, then he/she must notify us of this fact, and request a refund within ten days after the date of our notice to the User. Users who do not send such a notice will be deemed to accept the relevant increase. f. In the event that any payment due under this Agreement is not paid on the due date for payment then we will be entitled to charge interest on the outstanding amount at the rate of three percent per annum over the then-current base rate of National Westminster Bank Plc from the date payment becomes due until payment in full. This interest will accrue daily. 4. Operation and Cancellation of Accounts. a. If there are no Credits in your Account, we reserve the right to close the Account without telling you in advance; however, we will notify you by email that this has occurred. b. Where you have paid-for Credits in your Account: i. they will be used for the Celebrity Messages Service ordered under your Account; and ii. in the event that the Credits required to send messages requested through your Account are found to exceed the amount of Credits you hold (which may occur in the course of sending a group of messages, for example), then we will be entitled to suspend provision of the relevant the Celebrity Messages Service and/or sending the relevant messages until further payment has been received from you in an amount reasonably specified by us. c. You will be able to check the amount of Credits you have by going online and accessing your Account. d. If the User is a “consumer” (that is, a natural person acting outside of his/her business in dealing with Celebrity Messages), you have the right to cancel your Account during the seven working day cooling-off period which is provided for certain purchases under the Consumer Protection (Distance Selling) Regulations 2000 from the time when you register for your Account (the “Statutory Cooling-Off Period”). If you have placed credit in your Account during the Statutory Cooling-Off Period, and exercise your right to cancel your Account during that period, then we will refund to you the amount of that credit. However, please note that you will not be entitled to any refund of credit you have used for sending messages during the Statutory Cooling-Off Period. e. After the Statutory Cooling-Off Period, or where the User is not a consumer, if you cancel your Account within seven days of putting credit into it, we will repay to you (by means of a recharge to your relevant credit card account or a credit to your relevant bank or other account) the amount the amount of that credit, less our administration fee for the refund (which is [£2.50] of the relevant amount). Again, you will not be entitled to any refund of you will not be entitled to any refund of sums you have used for sending messages prior to the refund being made. f. If we notify you that we are withdrawing the Celebrity Messages Service fully, then you will be entitled to, and will be provided with, a rebate of the amount you paid for the Credits outstanding in your Account at the time of the withdrawal. g. If you cancel your Account, or we cancel it for any reason, you remain responsible for paying charges for messages sent through your Account, and for otherwise performing your obligations, under this Agreement. 5. Registration. You undertake to register for the Celebrity Messages Service using accurate and current information about yourself – including your correct name, address and any other requested details. If you are asked for, and provide, details of a credit, debit or charge card, you must ensure that (a) you are fully entitled to use that card, and (b) it has available funds sufficient to cover the charges which are deducted from it. As part of the registration process for the Celebrity Messages Service, you will receive a verification email, the purpose of which is to take reasonable steps to ensure that the email address you have nominated during registration is controlled by you. That email contains simple instructions which you must follow 6. Privacy policy. Our Privacy Policy forms part of this Agreement, and by agreeing to this Agreement, you also give your consent to the way we may handle your personal data in that policy. 7. Our Role. a. We source the celebrity messages and other content (the “Message Content”) that you are enabled to send using the Celebrity Messages Service. The copyright and other intellectual property in the Message Content is owned by us and the third party from whom we have sourced some (and sometimes all) of it. b. We will direct the messages you send through the Celebrity Messages Service as specified by you, and for this purpose will pass them to relevant online or mobile communications services for delivery as soon as they have passed through our systems. Please note that the delivery of a message is dependent upon; i. the message being correctly addressed and sent; ii. the addressee being able to receive the message; and iii. the relevant online or mobile communications services delivering the message as-addressed, and we cannot be responsible for non-delivery that results from any failure to satisfy these requirements. c. If we are responsible for any failure to deliver messages sent in accordance with this Agreement, then, once we establish that we are responsible for the failure, we will upon request refund to you the charges paid for sending that message. Should you wish to resend the messages, you will be responsible for arranging this. Please note that even if messages are properly sent, non-delivery may not necessarily result from a failure on our part – in particular, a proportion of non-delivery is to be expected when using mobile messaging services. d. From time to time, the Celebrity Messages Service may be unavailable for the sending of messages. We will strive to ensure that the periods of unavailability, which you will be informed of when you access the Celebrity Messages Service, are kept to a minimum. You must not send messages during these periods. e. You, whether you are a User or not, acknowledge that we are not and cannot be responsible for the behaviour of the senders or recipients of messages, or for the content of those messages. 8. Changes to terms by suppliers. The Celebrity Messages Service, and the terms and conditions which govern it, are subject to changes resulting from alterations made by service providers, such as internet access providers and mobile network operators, to the corresponding services provided to us or the terms and conditions which govern those corresponding services. In the event that any such change is made which has any effect upon the rights and obligations of the parties under this Agreement, then: a. the change in question will automatically bind you; and b. we will use our reasonable endeavours to notify the relevant changes to you as soon as is reasonably practicable. 9. Celebrity Messages Software. During the term of this Agreement, we license to you such use of the Celebrity Messages Software and associated documentation (collectively, the “Celebrity Messages Licensed Material”) as we make available to you solely for use of the Celebrity Messages service. This licence is non-transferable, non-sub licensable, non-exclusive and royalty-free and shall be limited to the duration of this Agreement. The Celebrity Messages Licensed Material may not be copied or distributed, or used for any purpose other than using the Celebrity Messages Service in accordance with this Agreement. You may not reverse engineer, decompile or disassemble any of the Celebrity Messages Licensed Material, save to the extent expressly permitted by applicable law. We are not an internet service provider, nor a vendor of consumer software. In order to avail of the Celebrity Messages Service, you must have internet access, the requisite mobile phone service, and all the software (and skills) required for the use of the Celebrity Messages Service and the Celebrity Messages Licensed Material via the internet. 10. Misuse of the Celebrity Messages Service. We are responsible for ensuring that the proper use of the Message Content does not infringe anyone’s intellectual property rights. Subject to this, you must ensure that: a. each message sent under your Account does not infringe the rights of any third parties or any laws or regulations, and is not defamatory, offensive or abusive or of an obscene or menacing nature; b. you accord with such reasonable instructions as we may from time to time notify to you where the sending of messages is concerned; c. the messages you send are is not likely to cause someone needless annoyance, inconvenience or distress, and are not inappropriate for the recipient; d. messages are not retransmitted or sold on to anyone; and e. no attempt is made to adapt or tamper with any of the Message Content. If you breach any of these requirements, you will be liable to us – and also, potentially, to a third party, such as (in the case of d. and e.) the celebrity in question. In the event that any service provider, regulator, or third party content supplier (such as a provider of Message Content, or a celebrity featured in it) makes a charge, fine, penalty or debit against us, or any deduction from sums otherwise payable to us by reason of a breach of the above requirements, then we will be entitled: (1) to recover from you the amount thereof, plus any costs or expenses incurred by us in connection with the incurring of the liability or the relevant charge, fine, debit or deduction; and (if you are an Account-holder) (2) to “freeze” your Account, and prevent the use of any credit held within it, and, upon notice to you, to use that credit to pay all or part of the amount levied by the operator or regulator or third party supplier. 11. Contact from mobile network operators. If a service provider, regulator, or third party content supplier (such as a provider of Message Content) or other relevant party contacts us in relation to any message sent under your Account, you agree to provide all reasonable information and assistance we may require in connection with responding to that contact. 12. Additional services. We or our affiliates may offer new or additional services through the Celebrity Messages Service from time to time. Your use of those services may be subject to additional terms and conditions, and codes of conduct, which you must comply with. Provided that those terms or codes are notified to you on the Celebrity Messages Service (in such manner as we reasonably determine) when you agree to take those services, any failure by you to comply with a material provision of the terms or codes governing those services will amount to a breach of this Agreement. 13. Operation of the Celebrity Messages Service. We reserve the right to withdraw or modify one or more aspects of the Celebrity Messages Service, or the entirety of it, where we have legal or commercial reasons to do so. There may also be times when the Celebrity Messages Service becomes inaccessible as a result of technical difficulties experienced by us, on the Internet or on the mobile networks; we will, however, use reasonable skill and care to overcome these difficulties where they are within our control. Please note that there will be no refund of credits on your Accounts except as provided elsewhere in this Agreement. For security or other reasons, we may require you to change password or other information which facilitates access to the Celebrity Messages Service; however, we will never ask you for your password. 14. Liability. a. We warrant that the Celebrity Messages Service will be performed with reasonable care and skill with the intention of meeting our specifications for the Celebrity Messages Service, but, given the uncertainties associated with internet and mobile telecommunications and related technologies, cannot and do not guarantee that the Celebrity Messages Service will meet your requirements, including (without limitation) as to the speed of delivery of any message. b. We also warrant that we have properly licensed the Message Content that is made available for Users to send through the Celebrity Messages Service. c. We will be liable as expressly provided in this Agreement, but shall have no other obligation, duty or liability whatsoever in contract, tort (including negligence, breach of statutory duty and any other tort) or otherwise. d. Nothing in this Agreement excludes or restricts our liability for death or personal injury resulting from our negligence. e. Subject always to sub-Clause f. below, we will be liable for direct loss or damage only, whether in contract, tort (including negligence, breach of statutory duty or other tort) or otherwise, and whether caused by our act or omission or that of our employees, agents or subcontractors. Our aggregate liability during any successive period of twelve months, the first of which shall be deemed to begin on the date when you first purchase Credits (each a “Year”), shall be limited to whichever is the greater of: i. £10 (ten pounds sterling); or ii. the aggregate of the amount you have paid for Credits purchased by you during that Year (excluding those that are refunded to you by us). f. We will not be liable to you or anyone else, whether in contract, tort (including negligence, breach of statutory duty or other tort) or otherwise: i. for any loss of revenue, business, anticipated savings or profits, or ii. for any indirect, special or consequential loss damage, costs or other claims, howsoever caused or arising, whether through non-supply or late supply of the Celebrity Messages Service or other non-performance of this Agreement or otherwise. g. Except as expressly stated elsewhere in this Agreement, all representations, warranties, conditions and other terms, whether express or implied (by common law, statute, collaterally or otherwise) are hereby excluded, except in the case of fraud, or where such exclusion is not permitted by law. h. For the avoidance of doubt, we will not have liability to you or any other person in respect of the content of messages, any instructions supplied by you in relation to messages, or any other act or omission by you or through your Account. i. The provisions of this Clause 16 shall survive the termination or expiry of this Agreement. 15. Indemnity. a. Each party (“indemnifier”) shall respectively, as provided in i. and ii. below, indemnify the other party (“indemnified”) against all costs, claims, expenses and liabilities arising out of any action, demand, allegation or proceeding by any person or entity (including, without limitation, any regulator) based on: i. indemnification by us: an allegation that the use or possession by you of the Celebrity Messages Licensed Material in accordance with Clause 9 above or the Message Content in infringes the copyright or other intellectual property rights of any third party; or ii. indemnification by you: an allegation which, if proved, would show that a breach of Clause 10 above had occurred. b. Indemnification under sub-Clause a. above is conditional upon the indemnified: i. notifying the indemnifier promptly upon being notified or becoming aware of any matter which may be indemnifiable under that sub-Clause; ii. not making any admission, denial or statement in relation to the matter; and iii. conducting the defence and settlement of the matter in accordance with reasonable instructions given by the indemnifier, provided the instructions are given as promptly as the indemnified reasonably requires. 16. Suspension. We will be entitled to suspend provision of the Celebrity Messages Service to the User at any time if: a. We are entitled to terminate this Agreement; b. We are is obliged or advised to comply with an order, instruction or request of the government, regulator, court or other competent authority; c. We have cause to believe in our reasonable opinion that you are in breach of any of its obligations under this Agreement; d. The services of one or more of the internet services or mobile network operators upon which the provision of the Celebrity Messages Service is dependent suspends its provision of those services to us; e. Any payment due to us under this Agreement is outstanding after the due date for payment; or f. the circumstances in sub-Clause 4.b. apply. 17. Termination. This Agreement may be terminated by notice as follows: a. by either party in the event the other has failed to perform any material obligation required to be performed under this Agreement and such failure is not corrected within seven (7) days from receipt of written notice advising of such failure from the other party, which notice shall make reference to this Clause; b. by us, in the event that any modification to our contracts for the provision of connectivity with mobile networks or any change in any law, regulation or code of conduct makes the provision of the Celebrity Messages Service to you illegal, prohibitively difficult or contrary to law, regulation or code of conduct; c. by either party in the event that the other party (being a company) presents a petition or has a petition presented by a creditor for its winding up, convenes a meeting to pass a resolution for voluntary winding up or enters into liquidation (other than for the purposes of a bona fide reconstruction or amalgamation), enters into a voluntary arrangement with its creditors, has a receiver, administrative receiver or administrator of all or any of its undertakings or assets appointed, or is deemed by the relevant statutory provisions under the applicable law to be unable to pay its debts or (if an individual) presents or has presented against him a bankruptcy petition or (if a non UK national or corporation) shall suffer anything analogous to these matters to occur to him or it; d. by either party in the event that any payment due hereunder is not paid by the other party within 30 days following the date when it is required to be paid in accordance with this Agreement. 18. Matters Beyond Reasonable Control. Either party’s performance of any obligation under this Agreement, other than payment obligations, shall be excused to the extent that it is hindered, delayed or otherwise made impractical by: a. the acts or omissions of the other party or any internet service provider or mobile network operator; b. flood, fire, earthquake, strike or riot; or c. any other cause (whether similar or dissimilar to those listed) beyond the reasonable control of that party. 19. Assignment. We reserve the right to assign this Agreement, and to assign or subcontract any or all of our rights and obligations under this Agreement, but will not do so in such a way as to reduce any guarantees you are given under this Agreement. You may not without our written consent assign or dispose of this Agreement, nor subcontract any of your rights and obligations under it. 20. Entire Agreement. This Agreement is intended to contain your entire agreement with us relating to the Celebrity Messages Service; we believe it to be fair and reasonable. It replaces all earlier agreements and understandings with you relating to the Celebrity Messages Service, except for any fraud or fraudulent representation by either of us. A person who is not a party to this Agreement has no right under the Contracts (Rights of Third Parties) Act 1999 to rely upon or enforce any term of this Agreement. 21. Changes to this Agreement. We reserve the right to change this Agreement from time to time, and post the new version on the Celebrity Messages Service. When we do so, we will notify you of the fact that there are changed terms on the main screen (www.Celebrity Messages.com), and the new version of these terms and conditions will take effect, and will govern all the Celebrity Messages Service and your relationship with us: a. commencing thirty days after the date of posting (or such later date as we indicate in the relevant posting), if any of the changes is to an operative provision of this Agreement which is capable of adversely affecting you; if you do not wish to be governed by the new version of the Agreement, you may notify us on or before the date when the new version of the Agreement is to take effect, and (1) from that date you must cease to use the Celebrity Messages Service, and (2) if the User is a consumer holding credit in his/her Account, the User will be entitled to a rebate of the amount of that credit outstanding in the Account at the time when the User permanently ceases use of the Celebrity Messages Service; or b. immediately upon the date of posting (or such later date as we indicate in the relevant posting), if the changes are not to operative provisions, or not capable of adversely affecting you - examples of which would include, without limitation, changes to contact details referred to, or the refinement of provisions that are already included, in this Agreement. 22. Severability. In the event that any term of this Agreement is held to be invalid or unenforceable by judicial decree or decision, the remainder of this Agreement shall remain valid and enforceable. 23. Law. This Agreement shall be governed by and construed in accordance with the laws of England and Wales. 24. Keeping this Agreement. We don’t separately file the individual Agreements entered into by members when they register for the Celebrity Messages Service. You can access it at www. CelebrityMessages.com. Please make a durable copy of this Agreement by printing and/or saving a downloaded copy on your own computer. It is offered in English only. 25. Contact. We are Big Red Carpet Celebrity Messaging Limited, and our registered office address is Big Red Carpet Celebrity Messaging Limited, Tyn Pwll, Rhosneigr, Anglesey, LL64 5XA. We are a company registered in England and Wales under registration no. 06310097. Please note that all notices under this Agreement are to be sent and received by email. For this purpose, your notices should be sent to Big Red Carpet Celebrity Messaging Limited, Suite 116, Technium CAST, Parc Menai, Bangor, Gwynedd LL57 4HJ and/or enquiries@celebritymessages.com and we will send our notices to you at the email address you notify to use when you register as a User as changed subsequently in your Account details. |
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