Last Amended: 05/04/2013
The Customer may not use any of Dynmark's services if The Customer does not accept this Agreement and the terms therein
The terms and conditions set forth herein may be amended in our sole and absolute discretion from time to time, and such amended terms and conditions shall be effective immediately upon posting to the Website. The Customer’s continued use of the Service after such posting will constitute acceptance by The Customer of such amendments. It is The Customer’s responsibility to review these Terms of Service frequently and remain informed about any changes to them. Any written agreement signed directly with Dynmark will supersede these Terms.
The following terms shall have the meanings specified below.
"Accessible Mobile Operators" shall mean the digital cellular networks accessible from Dynmark Platform
"Bundle" shall mean a monthly subscription for a minimum of 1 month which will include a combination of Services and Credits
"Consumable Services" shall mean any service provided by Dynmark that consumes Credits
"Credit" shall mean the unit value that can be exchanged for Dynmark Consumable Services
"Credit Proportion" shall mean a proportion of a Credit required to fund the use of Dynmark’s Consumable Services
"Dynmark Cloud Platform" shall mean the cloud based platform through which Dynmark delivers the Services and Consumable Services; "Information" shall mean any visual, textual data or other material made available through the access to the Dynmark Cloud Platform granted to you under this Agreement;
"Mobile Operator" shall mean the legal entity which operates a mobile telecommunications system or network;
"Non-Consumable Services" shall mean any services provided by Dynmark that do not consume credits
"Services" shall mean any Consumable Services or Non Consumable Services provided by Dynmark;
"Service Provider" shall mean a provider of telecommunication services.
All references to the plural herein shall also mean the singular and to the singular shall also mean the plural unless the context otherwise requires
Price & Credits
The fees to be paid to Dynmark by The Customer are set forth on our website. Dynmark has the right to issue a price change to The Customer without notice.
Payments made by The Customer to Dynmark for the Services are made in advance of accessing the Services. Dynmark shall not be obliged to perform any Services under this Agreement if The Customer has not provided payments in advance.
The prices for all items are as quoted during the online payment process. The customer confirms the pricing at point of purchase for the Credits or Services
Credits purchased by The Customer will be valid for 12 months from date of purchase. Unused credits after 12 months are cancelled. No refund will be given to The Customer on cancellation of credits
Use of Consumable Services provided by the Dynmark Cloud Platform will result in the consumption of a proportion of credits, a proportion being any fraction greater than or less than 1.
The Credit Proportion used for each Consumable Service is available from the Tariff in the Dynmark Shop.
The price of messages to each country is available on request.
Dynmark has the right to change the Credit Proportion for each Consumable Service without notice.
The balance of Credits available to The Customer will be shown within the Dynmark Cloud Portal. It is The Customer’s responsibility to monitor the balance of Credits available.
The prices for Bundles set forth on our website pricing page indicate the Non Consumable Services and Credits available for use by The Customer for a calendar month.Credits included within Bundles are only valid for use in that month.
No refund will be given to The Customer on cancellation of unused credits.
All charges and fees for the Services are exclusive of any taxes, (including sales, value-added, or other like taxes), and The Customer is responsible for paying all taxes associated with its purchases hereunder. If Dynmark has the legal obligation to pay or collect taxes for which The Customer is responsible, the appropriate amount shall be invoiced to and paid by The Customer, unless The Customer provides a valid tax exemption certificate authorized by the appropriate taxing authority.
It is understood that any communication generated by The Customer through the Dynmark Cloud Platform shall include no reference whatsoever to Dynmark or its trademarks.
The Customer undertakes not to use Dynmark Cloud Portal for any illegal, immoral or improper purpose or in any manner which contravenes applicable laws and codes; regulatory requirements of the appropriate jurisdiction or Mobile Operator requirements as they exist and as they change over time and undertake not to allow any third party to do so.
The Customer will inform Dynmark immediately if it has reason to believe that there is likely to be a use of the Service in any unauthorized fashion.
If 3.2 and 3.3 above are violated, Dynmark can immediately suspend (i.e. temporarily stop providing the Service) or terminate this Agreement, at its sole option, without prejudice to any damages that Dynmark may be entitled to claim.
Dynmark shall provide to The Customer, Services that meet reasonable commercial standards. Dynmark does not warrant that the Services will be fault-free, that it will be available continuously or that all the Accessible Mobile Operators will be reachable at all times.
Dynmark may temporarily suspend the Services for maintenance or upgrade reasons. Dynmark will endeavor to give The Customer 5 working days prior written notice of such suspension.
Except as expressly provided in this Agreement, Dynmark makes no warranties, representations, conditions or other terms in connections with the Accessible Mobile Operators or the provision of service as contemplated herein and disclaims all terms not expressly contained herein, whether written or oral, contractual , express or implied, or otherwise including without limitation any warranties as to merchantability, quality (including any warranties as to latency and throughput) and fitness for a particular purpose or use.
Dynmark is not responsible in any way for any mobile telecommunications systems or networks, which it does not operate and in particular for the network of the Mobile Operators. Therefore Dynmark is not liable for the acts or omissions of other providers of telecommunication services (including suspension or termination of Dynmark connections and/or contracts with any Mobile Operator) or for faults in or failures of their apparatus or network, and in general for any other technical reason attributable to Mobile Operator's network or telecommunication service provider.
Indemnification & Limitation of Liability
The Customer acknowledges that Dynmark has no control over the content which passes through the use of the Services and that Dynmark does not examine the use of such content or the nature or the source of the content. The Customer shall be solely liable for the content and any other material transmitted by The Customer. Dynmark excludes all liability of any kind in connection with the transmission or reception of such content. In case the content was found to be offensive or unacceptable by third parties, Dynmark would be entitled, without owing any indemnity to The Customer, with prior notice, to suspend (i.e. to temporarily stop providing the Services) or terminate the Services.
Dynmark shall not be liable for any indirect incidental, consequential, exemplary, and special or punitive damages incurred by The Customer, including without limitation any loss of profit, revenue or income, loss or use of data, or interruption of business, however arising. The Parties acknowledge that this is a reasonable allocation of risk.
Dynmark’s maximum liability to The Customer arising out of or related to this agreement is limited to £100. Liabilities limited by the preceding sentence include, without limitation, liability for negligence
The aforesaid limitations of liability do not apply to damage caused by the fault of any party, its statutory representatives or employees resulting from harm to life, physical harm or harm to health.
Term & Termination
All bundles have a minimum 1 month term and renew automatically each month unless terminated by The Customer as set forth below providing at least 1 month’s notice. No refund will be provided for bundles automatically renewed during the notice period.
The Customer has a 14 day cooling off period from Bundle start date, whereby only the first month bundle charge will be payable.
Unless terminated or cancelled as set forth above, all Bundles are non-refundable. To cancel, The Customer must provide written notice by email to email@example.com within the applicable time period, including the customer’s username.
All Non-Consumable Services have a minimum term indicated on the Website and renew automatically on the anniversary of this term unless terminated by the customer per 6.3.1
To cancel any Non Consumable Service as provided herein, The Customer must provide not less than 30 days written notice by email to firstname.lastname@example.org. Each notice shall include The Customer’s username.
Notice received within 30 days of the anniversary of the term will not be valid. The term will auto-renew and the Customer will be liable to pay for the new term.
Effect of Suspension or Termination.
Upon our suspension of The Customer use of any Services, in whole or in part, for any reason:fees will continue to accrue for any Services that are still in use by The Customer, notwithstanding the suspension;
The Customer remains liable for all fees, charges and any other obligations The Customer has incurred through the date of suspension with respect to the Services; and
all of Customer rights with respect to the Services shall be terminated during the period of the suspension.
Upon termination of this Agreement for any reason:
The Customer remain liable for all fees, charges and any other obligations The Customer has incurred through the date of termination with respect to the Services; and
all of Customer rights under this Agreement shall immediately terminate.
Intellectual property rights in all software, information, technology or data whatsoever supplied by Dynmark under the Agreement shall remain the property of Dynmark or its licensor.
Dynmark, Dynmark International, Dynmark USA, WIZ Messenger, the Dynmark logo, the WIZ Messenger logo and product and service names are trademarks of Dynmark. Without Dynmark’s prior permission, you agree not to display or use in any manner, the Dynmark trademarks.
Any delay or failure by either party hereto in performance hereunder shall be excused if and only to the extent that such delays or failures are caused by occurrences beyond such party's control, including acts of God, decrees or restraints of governments, strikes or other labour disturbances, war, sabotage, and any other cause or causes, whether similar or dissimilar to those already specified, which cannot be controlled by such party; provided that the party seeking to excuse its performance shall promptly notify the other party of the cause therefore, such performance shall be so excused during the inability of the party to perform but for no longer period, and the cause thereof shall be remedied so far as possible with all reasonable dispatch. Notwithstanding the foregoing, either party may terminate this Messaging Services Agreement in writing if such condition continues for a period of sixty (60) days.
General Terms & Conditions
The waiver by either party of any default or breach of this Agreement shall not constitute a waiver of any other subsequent default of breach.
This Agreement may not be changed or modified, nor may any provisions hereof be waived, nor may any consent or confirmation be deemed to have been given, except by an agreement in writing signed by the party against whom enforcement of the change or modification is asserted.
If any provision of this Agreement or any part of such provision is or becomes invalid or unenforceable or is missing, the other provisions of this Agreement shall not be affected thereby. The invalid or unenforceable or missing provision shall be replaced by a valid and enforceable provision, the effect of which comes as close as possible to the intended economical effect of the invalid or unenforceable or missing provision.
This Agreement, and any dispute or claim arising out of or in connection with it or its subject matter, shall be governed by, and construed in accordance with, the law of England and Wales. The parties irrevocably agree that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim that arises out of or in connection with this Agreement or its subject matter.
This agreement constitutes the whole agreement between the parties and supersedes any previous arrangement, understanding or agreement between them relating to the subject matter of this agreement.
Each party acknowledges that, in entering into this agreement, it does not rely on any statement, representation, assurance or warranty (Representation) of any person (whether a party to this agreement or not) other than as expressly set out in this agreement.
The Customer and Dynmark shall endeavour to resolve any controversy or claim through good faith negotiations. In the highly unlikely event that the parties are unable to resolve the matter within thirty working days of the matter being referred to them, or any other period agreed upon, such matter shall be resolved exclusively by arbitration.