Terms and Conditions

1. Website and Service Terms and Conditions - General

The DiaryBook website (“Website”) and related services (together with the Website, the “Service”) are operated by O’Sullivan Computer Consulting Limited (“DiaryBook,” “us,” or “we”) and is provided to you ("Member") under this agreement (“Terms and Conditions”) 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. By accessing or using any part of the Service, you represent that you have read, understood, and agree to be bound by these Terms and Conditions including any future modifications. DiaryBook may amend, update or change these Terms and Conditions. If we do this, we will post a notice that we have made changes to these Terms and Conditions on the Website. Any revisions to these Terms and Conditions will become effective the first time you access or use the Service after such changes. If you do not agree to abide by these Terms and Conditions, you are not authorized to use, access or participate in the Service.

2. Description of Website and Service

The purpose of The Service is to remind 3rd parties of their appointments with the Member and thus reduce missed appointments for the Member. The Service allows Members to (i) send SMS text message reminders to mobile phone handsets of 3rd party subscribers and (ii) add appointment details for 3rd parties for the purpose of having SMS text message reminders sent to the appropriate third parties mobile phone handsets. Members can choose the wording of the message reminder from pre-made templates or by authoring their own message. Each message is personalized with data entered by the Member. Members interested in using The Service may do so only if they comply with requirements set forth in these Terms and Conditions concerning data protection and fair usage. DiaryBook may, in its sole discretion and at any time, update, change, suspend, make improvements to or discontinue any aspect of the Service, temporarily or permanently.

3. Registration and Privacy

Registration

In connection with registering for and using the Service, you agree (i) to provide accurate, current and complete information about you and/or your organization as requested by DiaryBook; (ii) to maintain the confidentiality of your password and other information related to the security of your account; (iii) to maintain and promptly update any registration information you provide to DiaryBook, to keep such information accurate, current and complete; and (iv) to be fully responsible for all use of your account and for any actions that take place through your account.

Privacy

The DiaryBook privacy policies, which are incorporated herein by this reference, are available at http://www.diarybook.co.uk/privacy. 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, current special offers, service usage tips, information about third party services that are likely to be of interest to DiaryBook members, and member satisfaction questions. If Member does not want to receive these emails, at any time Member may opt-out using links within the emails or by contacting DiaryBook support. Separate to these emails, DiaryBook may use Member's email address to send to Member administrative notices about Member's account (such as notices about account balances or service distruption). If Member does not want to receive these emails, at any time Member may cancel his/her DiaryBook service pursuant to the terms of this agreement.

4. Your Representations and Warranties

You represent and warrant to DiaryBook that your access and use of the Service will be in accordance with these Terms and Conditions and with all applicable laws, rules and regulations of Ireland, the European Union and any other relevant jurisdiction, including those regarding online conduct or acceptable content, and those regarding the transmission of data and/or the jurisdiction in which you reside.

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 or Settings section of the web site. Member is entirely responsible if Member does not maintain the confidentiality of Member's password 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.

5. Charges to 3rd Parties

DiaryBook does not initiate any charges to Member’s 3rd party contacts. However, the 3rd party may incur a charge from their own mobile phone operator if, for example but not limited to, they are roaming at the time of message delivery. Further, should the 3rd party reply to the message (either because Member has enabled the reply feature or disabling reply feature is not available in their country of operation) then that 3rd party will incur normal mobile SMS charges as governed by their own mobile operator.

6. SMS Text Parts and Charging

Member’s account is charged for every text message part sent from Member’s account, whether initiated manually by Member or initiated automatically by DiaryBook. If a text message is too long for a single part it can be sent in a multi-part message. Therefore a text reminder can be comprised of multiple billable message parts. The service endeavors to show Member when a message will exceed a single message part but Member agrees that DiaryBook cannot be held responsible for any technical or other reason that fails to properly inform Member when a message will be sent as multi-part message. The size of a single message can vary depending on message content and the 3rd parties mobile operator.

7. Restrictions on Replies and Sender IDs

Members of The Service have the option to (i) brand their message and prevent replies to messages or (ii) enable replies to SMS messages. To that end, every SMS message sent uses a Sender ID to either (i) represent the Member as the Sender of the message or (ii) enable the receiver to reply to the SMS message. In the case of (i) the Sender ID is limited to 11 characters, can only contain letters and is subject to approval by DiaryBook. In the case of (ii) the Sender ID is a mobile or landline number owned by DiaryBook. The number is not fixed and can change depending on the country of the receiver’s subscriber number.

DiaryBook’s ability to use (i) alpha Sender IDs and (ii) reply text numbers are limited to the capabilities of each mobile operator in each country. Because of this DiaryBook may not be able to provide one or other feature that the Member operates from. Member should contact DiaryBook by email (support@diarybook.com) requesting further information for their country of operation.

8. Inappropriate Use

You will not upload, display or otherwise provide on or through the Service any content that: (i) is libelous, defamatory, abusive, threatening, harassing, hateful, offensive or otherwise violates any law or infringes upon the right of any third party (including copyright, trademark, privacy, publicity or other personal or proprietary rights); or (ii) in DiaryBook’s sole judgment, is objectionable or which restricts or inhibits any other person from using the Service or which may expose DiaryBook or its users to any harm or liability of any kind.

You must have prior permission from the mobile phone subscriber to send text messages to them via SMS to their mobile phone. Further such messages sent through DiaryBook must ONLY be appointment reminders or notifications and cannot be for the purposes of sales or marketing.

Your chosen Sender ID must represent the individual or business of Member.

9. Indemnification of DiaryBook

You agree to defend, indemnify and hold harmless DiaryBook and its directors, officers, employees, contractors, agents, suppliers, licensors, successors and assigns, from and against any and all losses, claims, causes of action, obligations, liabilities and damages whatsoever, including solicitor fees, arising out of or relating to your access or use of the Service, any false representation made to us (as part of these Terms and Conditions or otherwise), your breach of any of these Terms and Conditions, or any claim that any translation we provide to you is inaccurate, inappropriate or defective in any way whatsoever.

10. NO REPRESENTATIONS OR WARRANTIES

THE SERVICE, INCLUDING ALL IMAGES, AUDIO FILES AND OTHER CONTENT THEREIN, AND ANY OTHER INFORMATION, PROPERTY AND RIGHTS GRANTED OR PROVIDED TO YOU BY DIARYBOOK ARE PROVIDED TO YOU ON AN “AS IS” BASIS. DIARYBOOK AND ITS SUPPLIERS MAKE NO REPRESENTATIONS OR WARRANTIES OF ANY KIND WITH RESPECT TO THE SERVICE, EITHER EXPRESS OR IMPLIED, AND ALL SUCH REPRESENTATIONS AND WARRANTIES, INCLUDING WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT, ARE EXPRESSLY DISCLAIMED. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, DIARYBOOK DOES NOT MAKE ANY REPRESENTATION OR WARRANTY OF ANY KIND RELATING TO ACCURACY, SERVICE AVAILABILITY, COMPLETENESS, INFORMATIONAL CONTENT, ERROR-FREE OPERATION, RESULTS TO BE OBTAINED FROM USE, OR NON-INFRINGEMENT. ACCESS AND USE OF THE SERVICE MAY BE UNAVAILABLE DURING PERIODS OF PEAK DEMAND, SYSTEM UPGRADES, MALFUNCTIONS OR SCHEDULED OR UNSCHEDULED MAINTENANCE OR FOR OTHER REASONS. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES, SO THE ABOVE EXCLUSION MAY NOT APPLY TO YOU.

11. LIMITATION ON TYPES OF DAMAGES/LIMITATION OF LIABILITY

IN NO EVENT WILL DIARYBOOK BE LIABLE TO YOU OR ANY THIRD PARTY CLAIMING THROUGH YOU (WHETHER BASED IN CONTRACT, TORT, STRICT LIABILITY OR OTHER THEORY) FOR INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES ARISING OUT OF OR RELATING TO THE ACCESS OR USE OF, OR THE INABILITY TO ACCESS OR USE, THE SERVICE OR ANY PORTION THEREOF, INCLUDING BUT NOT LIMITED TO THE LOSS OF USE OF THE SERVICE, INACCURATE RESULTS, LOSS OF PROFITS, BUSINESS INTERRUPTION, OR DAMAGES STEMMING FROM LOSS OR CORRUPTION OF DATA OR DATA BEING RENDERED INACCURATE, THE COST OF RECOVERING ANY DATA, THE COST OF SUBSTITUTE SERVICES OR CLAIMS BY THIRD PARTIES FOR ANY DAMAGE TO COMPUTERS, SOFTWARE, MODEMS, TELEPHONES OR OTHER PROPERTY, EVEN IF DIARYBOOK HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. DIARYBOOK’S LIABILITY TO YOU OR ANY THIRD PARTY CLAIMING THROUGH YOU FOR ANY CAUSE WHATSOEVER, AND REGARDLESS OF THE FORM OF THE ACTION, IS LIMITED TO THE AMOUNT PAID, IF ANY, BY YOU TO DIARYBOOK FOR THE SERVICE IN THE 12 MONTHS PRIOR TO THE INITIAL ACTION GIVING RISE TO LIABILITY. THIS IS AN AGGREGATE LIMIT. THE EXISTENCE OF MORE THAN ONE CLAIM HEREUNDER WILL NOT INCREASE THIS LIMIT.

12. Termination

DiaryBook may terminate your access and use of the Service immediately at any time, for any reason, and at such time you will have no further right to use the Service. You may terminate your DiaryBook account at any time by following the instructions available through the Service. The provisions of these Terms and Conditions relating to the protection and enforcement of DiaryBook’s proprietary rights, your representations and warranties, disclaimer of representations and warranties, release and indemnities, limitations of liability and types of damages, ownership of data and information, governing law and venue, and miscellaneous provisions shall survive any such termination.

13. Proprietary Rights in Service Content

All content available through the Service, including designs, text, graphics, images, information, software, audio and other files, and their selection and arrangement (the "Service Content"), are the proprietary property of DiaryBook or its licensors. No Service Content may be modified, copied, distributed, framed, reproduced, republished, downloaded, scraped, displayed, posted, transmitted, or sold in any form or by any means, in whole or in part, other than as expressly permitted in these Terms and Conditions. You may not use any data mining, robots, scraping or similar data gathering or extraction methods to obtain Service Content. All rights of DiaryBook or its licensors that are not expressly granted in these Terms and Conditions are reserved to DiaryBook and its licensors.

14. Trademarks

“DiaryBook” and all other trademarks, service marks, graphics and logos used in connection with the Service are trademarks or service marks of DiaryBook or their respective owners, and certain of them are registered with the European Patent and Trademark Office. Access and use of the Service does not grant or provide you with the right or license to reproduce or otherwise use the DiaryBook name or any DiaryBook or third-party trademarks, service marks, graphics or logos.

15. Governing Law and Arbitration

These Terms and Conditions, its subject matter and DiaryBook’s and your respective rights under these Terms and Conditions shall be governed by and construed under the laws of the Republic of Ireland, excluding the conflict of law provisions of that or any other jurisdiction. Any dispute arising between you and DiaryBook will be resolved by binding arbitration. The arbitration shall be conducted by a single arbitrator in the County of Dublin in the Republic of Ireland. Unless otherwise expressly required by applicable law, each party shall bear its own solicitors’ fees without regard to which party is deemed the prevailing party in the arbitration proceeding.

16. Language

This agreement was originally written in English. To the extent any translated version of this agreement conflicts with the English version, the English version controls.

17. Miscellaneous

These Terms and Conditions constitute the entire agreement between DiaryBook and you concerning the subject matter hereof. In the event that any of the Terms and Conditions are held by a court or other tribunal of competent jurisdiction to be unenforceable, such provisions shall be limited or eliminated to the minimum extent necessary so that these Terms and Conditions shall otherwise remain in full force and effect. A waiver by DiaryBook or you of any provision of these Terms and Conditions or any breach thereof, in any one instance, will not waive such term or condition or any subsequent breach thereof. DiaryBook may assign its rights or obligations under these Terms and Conditions without condition. These Terms and Conditions will be binding upon and will inure to the benefit of DiaryBook and you, and DiaryBook’s and your respective successors and permitted assigns.

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