IMPORTANT LEGAL NOTICE
TM Mobile Solutions Limited (whose registered number is 10292426 and whose registered office is at One Canada Square, Canary Wharf, London, E14 5AP, United Kingdom) (“Trinity Mirror”, “we” or “us”) agrees to provide the Notiz Service to you, and you agree to access the Notiz Service, subject strictly to these Terms and Conditions of Use (these “Terms”). These Terms create a binding legal contract between you and us which sets out our respective legal rights and obligations in relation to the provision, access and use of the Notiz Service. Accessing, viewing and searching the Notiz website is free, but when you access or use the Notiz Service, you are deemed to have automatically accepted these Terms and agree to use the Notiz Service in accordance with these Terms. We therefore recommend that you read these Terms carefully before registering with us or subscribing for the Notiz Service. If you do not accept these Terms, you should not register with us or subscribe for the Notiz Service.
Our Contract with You
The Notiz Service (the “Service”) is a service provided by Trinity Mirror to Local Authorities and Agencies for targeted and measured delivery of Informational Messages to the Notiz Network.
Informational Messages shall be in the form of an initial 140 character (max) message delivered to end users mobile devices and then, if the user opts to accept, a full screen informational notice offering the ability to deliver notice information to the user and including, but not limited to, text and location.
The Notiz Network (“Notiz Network”) is an audience comprised of users of a given Trinity Mirror Local Authority Notiz application who have given permission to receive messages from that application and for the use of their mobile device’s location tracking technology to derive and store location data.
“Local Authority” shall mean any entity or person that desires to use the Notiz Service to target and deliver its messages onto the Notiz Network.
“Agency” shall mean any entity or person that desires to use the Notiz Service to target and deliver messages for their client Local Authority onto the Notiz Network. References in this Agreement to “Your Clients” shall only apply if You are an Agency.
“Effective Date” is deemed the day on which you first contract to deliver messages using Notiz either by signing a separate Agreement with Trinity Mirror or entering Payment Details into the System and selecting a pricing plan.
1. You and Trinity Mirror
understand that You are required to use Trinity Mirror’s proprietary Notiz Message Management System software technology (the “System”) in order to receive the Service. Accordingly, Trinity Mirror grants to You the non-exclusive and non-transferable right to access and use the System, which You can access and use only on Trinity Mirror’s Web servers by means of a unique password chosen by You, and only for the purposes of: (i) uploading and storing notices for delivery by the Service, (ii) selecting trafficking criteria for the delivery of notices to the Notiz Network, (iii) receiving reports of message delivery and other data related to the delivery of messages by the Service and (iv) making payments to your account and managing your payment mechanisms (v) if You are an Agency, creating and maintaining a data record for each of Your Clients.
2. Your Obligations.
You shall be solely responsible for setting up your messages using the System. You shall obtain all necessary rights, licenses, consents, waivers and permissions to allow Trinity Mirror to store and deliver your messages and otherwise operate the Service on Your behalf and on behalf of Your Clients, and to use any data provided to or collected by the System, and You agree to comply with any further requirements regarding messages agreed with Trinity Mirror. You further represent that You have read, understand, and will conform to, Trinity Mirror's statement on privacy that can be found on the Trinity Mirror Web site. You must take all reasonable steps to ensure that no one (including You) uses the Notiz service;
(a) fraudulently and/or in connection with any other criminal offence;
(b) to send, knowingly receive, upload, store, download or use any material which is offensive, abusive, indecent, libelous, obscene or menacing, or in breach of copyright, confidence, privacy or any other intellectual property rights or other third party rights;
(c) to cause annoyance, inconvenience or needless anxiety to anyone;
(d) to ‘spam’ or to send, or provide, unsolicited advertising or promotional material, or to knowingly receive responses to any ‘spam’, unsolicited advertising or promotional material, sent or provided by any third party;
(e) in an unlawful manner, in contravention of any applicable legislation, laws, codes of practice, licenses or third party rights or in contravention of our Acceptable Use Policies (which are deemed to be incorporated herein) which are located at http://www.Notiz.co.uk (as the same may be amended from time to time); or
(f) in a way that does not fully comply with any and all instructions that we may give to you from time to time.
3. Trinity Mirror’s Obligations.
Trinity Mirror's sole obligations hereunder shall be (i) to deliver messages through the Service according to the trafficking criteria selected by You using the System, (ii) to make customer service personnel available by telephone for support during 9am-5pm working hours, Monday to Friday during the Term. If you require training, when available, at a training facility near Your site, Trinity Mirror shall provide such training to You at Trinity Mirror’s standard published rates for such training. For training at a training facility near Your Site, You agree to reimburse Trinity Mirror for its actual travel and lodging expenses, as well as all training facility fees and a daily overhead fee.
You shall pay Trinity Mirror the fees for System access and message delivery as set forth either on the Notiz System site or in a separate Agreement between You and Trinity Mirror where such Agreement shall be deemed an Addendum to these Terms and Conditions. The fees may include an Annual Access Fee and Additional Message Fees. The Annual Access Fee will be invoiced or charged directly to your account annually. Additional Messages fees will be charged for any messages delivered over and above the standard allocation included in your Annual Access Fee. All fees hereunder shall be denominated in British Pounds and paid either directly from a debit/credit card, PayPal or, if agreed by Trinity Mirror, by company cheque or BACS transfer, or by other means expressly agreed to in writing by Trinity Mirror. You shall also be responsible for and shall pay any applicable sales, use value added taxes or other taxes or duties, tariffs or any other additional sums whether levied on this Agreement or on the provision of the Service. All payments hereunder shall be made without deduction for withholding taxes. Late payments will be subject to late fees at the rate of one and one half percent (1.5%) per month, or, if lower, the maximum rate allowed by law. Time of payment shall be of the essence. In the event of a material adverse effect on Your creditworthiness, as reasonably determined by Trinity Mirror, or Trinity Mirror otherwise reasonably deems itself insecure, Trinity Mirror reserves the right to change its credit term, or suspend, without prior notice, its performance under this Agreement until You provide reasonable assurance that You will continue to be able to perform Your obligations under this Agreement in a timely manner. Notwithstanding any provisions in the Agreement to the contrary, Trinity Mirror's obligations hereunder are conditioned upon Your fulfillment of payment obligations to Trinity Mirror. Without prejudice to the generality of the foregoing. If You fail to pay fees invoiced by Trinity Mirror within thirty (30) days following the payment due date, Trinity Mirror shall have the right to suspend performance of the Services without notice to You; such Service not to be reinstated until You pay all such overdue amounts and an additional reinstatement fee of £ 500. In addition, You also agree to pay any attorneys’ fees and/or collection costs incurred by Trinity Mirror in collecting any past due amounts from You.
5. Proprietary Rights and Restrictions.
Trinity Mirror is the exclusive supplier of the Service and the exclusive owner of all right, title and interest in and to the System, all software, databases, any and all copyright, trade marks, trade names, patents and all other intellectual property rights and all other aspects and technologies related to or subsisting in or used in connection with the System and Service, including the System, any enhancements thereto and any materials provided to You by Trinity Mirror through the System or otherwise. You may not use the System except pursuant to the limited rights expressly granted in this Agreement. You shall use the System only in accordance with instructions supplied by Trinity Mirror and only in accordance with Trinity Mirror's standard security procedures, as posted on the Trinity Mirror Web site or otherwise notified to You.
You have the right to use all data derived from Your use of the Service, for any purpose except any processing of any personal data unless such data is separately derived and is related to Your business if you are an Local Authority or Your Clients’ respective businesses if You are an Agency. Trinity Mirror may use and disclose the aggregate data derived from Your use of the Service only (i) for Trinity Mirror’s reporting purposes, consisting of compilation of aggregated statistics about the Service (e.g., the aggregate number of messages delivered) that may be provided to customers, potential customers and the general public and shall not include any personally-identifiable information; and (ii) if required by court order, law or governmental agency.
Unless terminated earlier in accordance with the termination rights set forth in this Agreement, the term of this Agreement shall be for a period of one year from the Effective Date (the “Term”). Unless terminated by either party upon sixty (60) days’ notice prior to the end of the initial term or any renewal term, the Agreement shall automatically renew for successive one year terms.
At any time during the Term, this Agreement shall terminate (i) thirty (30) days after a party’s notice to the other party that such other party is in breach hereunder, unless the other party cures such breach within said thirty (30) day period or (ii) immediately upon Trinity Mirror’s notice to You of Trinity Mirror’s reasonable determination that You or Your Clients are using or could use the Service or the System in breach of your obligations or in such a manner that could damage or cause injury to the Service or the System or reflect unfavourably on the reputation of Trinity Mirror. If this Agreement is terminated by Trinity Mirror due to a breach by You, You are required to promptly pay Trinity Mirror any outstanding fees incurred but unpaid under this Agreement outstanding at the date of termination of this Agreement.
You agree to indemnify and hold Trinity Mirror and its officers, directors, employees and agents (each a “Trinity Mirror Indemnitee”) harmless from and against any and all third party claims, actions, losses, damages, liability, costs and expenses (including, without limitation, reasonable attorneys’ fees and disbursements incurred by a Trinity Mirror Indemnitee in any action between You and the Trinity Mirror Indemnitee, or between the Trinity Mirror Indemnitee and any third party or otherwise) arising out of or in connection with (i) the breach of any of Your representations, warranties or obligations set forth in this Agreement, (ii) Your use of the Service or the System other than as permitted herein (iii) any claim by a third party that your advertising messages breach their IP or that they breach any relevant legislation (iv) Your violation of this Agreement, or (v) Your infringement of any intellectual property or other right of any other person or entity.
10. WARRANTIES AND DISCLAIMER.
Trinity Mirror represents and warrants that the System was developed by Trinity Mirror without infringement or misappropriation of any third party’s copyrights or trade secrets. You acknowledge that the Service and the System can be used to target, measure and traffic messages in many different ways and based on many different types of data. You represent and warrant that You and Your Clients will not use the Service or the System in a way or for any purpose that infringes or misappropriates any third party’s intellectual property rights or personal rights. YOUR USE OF THE SERVICE IS AT YOUR SOLE RISK. IT IS SOLELY YOUR RESPONSIBILITY TO EVALUATE THE ACCURACY, COMPLETENESS AND USEFULNESS OF ALL ADVICE, SERVICES AND OTHER INFORMATION PROVIDED THROUGH THE SERVICE AND TRINITY MIRROR SHALL NOT BE LIABLE FOR THE ACCURACY, USEFULNESS OR AVAILABILITY OF ANY INFORMATION TRANSMITTED VIA THE SERVICE. THE SERVICE IS PROVIDED ON AN “AS IS” AND “WHEN AVAILABLE” BASIS AND EXCEPT AS SET FORTH IN THIS AGREEMENT, TRINITY MIRROR MAKES NO WARRANTIES OF ANY KIND TO ANY PERSON WITH RESPECT TO THE SERVICE, THE SYSTEM OR ANY AD BANNER OR OTHER DATA SUPPLIED THEREBY, WHETHER EXPRESS OR IMPLIED, INCLUDING ANY IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE OR NONINFRINGEMENT.
11. Limitation and Exclusion of Liability.
Trinity Mirror shall not be liable to You, Your Clients or any other third party for any loss, cost, damage or expense incurred, howsoever caused directly or indirectly in connection with this Agreement or the availability, operation or use of the Service, the System or any advertising message or other data supplied thereby, including, without limitation, for any unavailability or inoperability of the System or the Internet, technical malfunction, computer error or loss or corruption of data, or other injury, damage or disruption of any kind related thereto. NOTWITHSTANDING THE GENERALITY OF THE ABOVE, IN NO EVENT SHALL TRINITY MIRROR BE LIABLE FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL OR EXEMPLARY DAMAGES, INCLUDING, BUT NOT LIMITED TO, LOSS OF PROFITS, OR LOSS OF BUSINESS OPPORTUNITY, EVEN IF SUCH DAMAGES ARE FORESEEABLE AND WHETHER OR NOT TRINITY MIRROR HAS BEEN ADVISED OF THE POSSIBILITY THEREOF. TRINITY MIRROR’S MAXIMUM AGGREGATE LIABILITY SHALL NOT EXCEED THE TOTAL AMOUNT PAID BY YOU TO TRINITY MIRROR UNDER THIS AGREEMENT DURING THE TWELVE (12) MONTH PERIOD PRIOR TO THE FIRST DATE THE LIABILITY AROSE. In Your agreements with Your Clients, You will include a provision that will state that Trinity Mirror is a third party beneficiary of any disclaimers and limitations or exclusions of liability You agree with Your Client.
The terms of this Agreement and information and data that one party (the “Receiving Party”) has received or will receive from the other party (the “Disclosing Party”) about the Service, the System, and other matters are proprietary and confidential information (“Confidential Information”), including without limitation any information that is marked as “confidential” or should be reasonably understood to be confidential or proprietary to the Disclosing Party and any reference manuals compiled or provided hereunder. The Receiving Party agrees that for the Term and for two (2) years thereafter, the Receiving Party will not disclose the Confidential Information to any third party, nor use the Confidential Information for any purpose not permitted under this Agreement. The nondisclosure obligations set forth in this Section shall not apply to information that the Receiving Party can document is generally available to the public (other than through breach of this Agreement) or was already lawfully in the Receiving Party’s possession at the time of receipt of the information from the Disclosing Party.
13. Independent Contractor Status.
Each party shall be and act as an independent contractor and not as partner, joint venturer or agent of the other.
14. Modifications and Waivers.
This Agreement represents the entire understanding between Trinity Mirror and You and supersedes all prior agreements relating to the subject matter of this Agreement. No failure or delay on the part of either party in exercising any right, power or remedy under this Agreement shall operate as a waiver, nor shall any single or partial exercise of any such right, power or remedy preclude any other or further exercise or the exercise of any other right, power or remedy. Unless otherwise specified, any amendment, supplement or modification of or to any provision of this Agreement, any waiver of any provision of this Agreement and any consent to any departure by the parties from the terms of this Agreement, shall be effective only if it is made or given in writing and signed by both parties.
Trinity Mirror may assign this agreement or any part of it without restrictions. You may not assign this agreement or any part of it to any third party; provided, however, that this Agreement may be assigned by either party to a person or entity who acquires substantially all of such party’s assets, stock or business by sale, merger or otherwise.
16. Applicable Law.
This Agreement shall be governed by the laws of the England and submitted to the exclusive jurisdiction of courts in London.
17. Additional Professional Services.
In the event that You require any additional services not covered under this Agreement, the parties shall execute mutually agreed upon statements of work for such professional services to be performed by Trinity Mirror, such statements of work to be attached and made a part hereof (each, a “Statement of Work”). Each such Statement of Work shall include, without limitation, the applicable fees, payment schedule and delivery schedule for such services. All services provided under a Statement of Work shall constitute a Service under this Agreement. Unless otherwise provided in the Statement of Work, all work product or services provided by Trinity Mirror shall be the sole and exclusive property of Trinity Mirror (save and except any of Your trademarks or service marks which may be contained therein and which shall remain Your property), and Trinity Mirror grants to You a non-exclusive, non-transferable, worldwide license to publicly perform, display and use any work product developed hereunder solely in connection with the terms and conditions of this Agreement.
Any provision of this Agreement which is prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective only to the minimum extent necessary without invalidating the remaining provisions of this Agreement or affecting the validity or enforceability of such provisions in any other jurisdiction. The parties will work together in a fair, positive and accurate manner to issue publicity and general marketing communications concerning their relationship, Your use of Trinity Mirror’s services, and other mutually agreed-upon matters. Neither party will issue such publicity and general marketing communications concerning this relationship without the prior written consent of the other party; provided, however, that Trinity Mirror shall have the right to use Your name and logos in general marketing materials related to the Service and System. No failure or omission by either party in the performance of any obligation under this Agreement shall be deemed a breach of this Agreement nor create any liability if the same shall arise from any cause or causes beyond the reasonable control of such party, including but not limited to the following: acts of God, acts or omissions of any government or any rules, regulations or orders of any governmental authority or any officer, department, agency or instrument thereof; fire, storm, flood, earthquake, accident, acts of the public enemy, war, rebellion, Internet brown out, insurrection, riot, invasion, strikes, or lockouts. All notices, demands and other communications provided for or permitted under this Agreement shall be made in writing to the parties’ at the addresses on the Cover Page and shall be sent by registered or certified first-class mail, return receipt requested, telecopier, courier service or personal delivery and shall be deemed received upon delivery. You shall comply with all applicable laws, statutes, ordinances and regulations regarding your use of the Service.