Our terms and conditions are updated as of the 15th April 2013
AGREED TERMS
| 1 | Interpretation |
| 1.1 | The definitions and rules of interpretation in this clause apply in these terms and conditions. Account: records of all information relating to You and supplied to Us, including your personal details and details of your use of the Services. Agreement: these terms and conditions and the privacy policy. Charges: the charges payable by You for the Services in accordance with clause 5. Partner Networks: the partner networks listed from time to time at www.ovivomobile.com. Personal Data: has the meaning set out in section 1(1) of the Data Protection Act 1998. Privacy Policy: the privacy policy set out at www.ovivomobile.com. Service: telecommunication services, including calls, SMS/MMS and other messaging services (including the receipt of marketing messages from selected 3rd Parties) and access to the internet via the networks operated by Partner Networks. Sim Card: the card provided to access the Service and bearing a unique mobile number We: OVIVO Mobile Communications limited a company incorporated in England and Wales with registered number 07768728 and having its registered office at Ashford House, Grenadier Road, Exeter, Devon, EX1 3LH You: the customer or end user who uses the Service and to whom this Agreement applies |
| 1.2 | Clause and schedule headings do not affect the interpretation of this agreement. |
| 1.3 | A person includes a natural person, corporate or unincorporated body (whether or not having separate legal personality). |
| 1.4 | Unless the context otherwise requires, words in the singular include the plural and in the plural include the singular. |
| 1.5 | A reference to writing or written includes faxes and e-mail |
| 1.6 | Any phrase introduced by the terms including, include, in particular or any similar expression shall be construed as illustrative and shall not limit the sense of the words preceding those terms |
| 2 | Commencement and Duration of the Contract |
| The Agreement will commence on the date you are issued with a Sim Card and shall be in force unless it is terminated by You or Us in accordance with these terms and conditions | |
| 3 | The Provision of the Service |
| 3.1 | We shall provide the Service to You in accordance with the Agreement |
| 3.1.1 | To use the Service, you must be 18 years old or over |
| 3.2 | Use of the service is dependent on receiving marketing messages from OVIVO Mobile. This is a mandatory opt in requirement and if not acceptable, then OVIVO Mobile will terminate the service and if required, allow the mobile number to be ported out |
| 3.3 | To enable You to use the Service: |
| 3.3.1 | We shall provide You with a Sim Card within three working days from registration and payment. Any Sim Card is provided to you under a licence and it remains our property |
| 3.3.2 | You are required to activate the Service by creating an Account. As part of the registration process, We may provide You with a username and password |
| 3.3.3 | The Sim Card is to be used with compatible mobile telephone handsets. Supported handsets are published on our website |
| 3.3.4 | You are responsible for notifying OVIVO Mobile in the event of a lost username or password, or if is suspected that your account has been compromised or accessed unlawfully |
| 3.4 | You shall treat any username, password or any other information which forms part of our security procedures as confidential (Security Information) and You shall not disclose it to any third party. You shall be liable for any loss or damage arising out of the disclosure of any Security Information |
| 3.5 | It is your responsibility to inform Us immediately about any changes to your personal details and keeping your Account updated |
| 3.6 | We have the right to disable any access code, username, password or other information provided to You if, in our opinion, You fail to comply with any of the provisions of the Agreement. In the event of any aspect of your service becoming disabled, you will be contacted either via SMS or E-mail |
| 3.7 | From time to time We may temporarily suspend the Service because of an emergency or for operational maintenance or improvements or for the purpose of ensuring network or information security. In such cases, We shall aim to restore the Service as soon as reasonably practical and any information about outages will be published on our website |
| 3.8 | We do not guarantee that products or services or any websites accessible via the Service are fit for purpose, accurate, reliable, of suitable quality, error or virus free, and dealings that You may have with promotions, services or merchants via the Service are solely between You and the person with whom they are dealing |
| 3.9 | We do not warrant or guarantee the performance of the networks supplied by Partner Networks or that the transmission of information over such networks will be secure or that they will be accessible at all times or at the speeds indicated by the Partner Networks |
| 4 | Use of the Service |
| 4.1 | You may access the Service in accordance with these terms and conditions, as well as the terms and conditions of use of any Partner Networks as apply from time to time |
| 4.2 | You warrant that any use of the Service by You complies with these terms and conditions, and the terms and conditions of use of the Partner Networks, and You will indemnify Us for any breach of that warranty |
| 4.3 | Access to the Service is provided to You for your use only. You are responsible for the acts and omissions of any third party who accesses the Services using the SIM Card allocated to You |
| 4.4 | You may not re-sell the Service or SIM Card to any third party for money or money’s worth and You may not assign, sub-license or otherwise transfer your rights under the agreement. It shall be assumed that if anyone else uses the service provided, that You have given permission unless the SIM has been reported stolen |
| 4.5 | OVIVO Mobile shall not be liable for any situations in which a 3rd party has used the service, with or without your consent |
| 4.6 | You shall not use the Service: |
| 4.6.1 | In any way that is likely to adversely interfere with the provision of the Services |
| 4.6.2 | In any way that is likely to harm, damage or interfere with the operation of Partner Networks |
| 4.6.3 | In any way that breaches any applicable local, national or international law or regulation |
| 4.6.4 | In any way that is unlawful or fraudulent, or has any unlawful or fraudulent purpose or effect |
| 4.6.5 | For any immoral or criminal purpose |
| 4.6.6 | For the purpose of harming, or attempting to harm, or causing nuisance or annoyance to others in any way |
| 4.6.7 | To transmit, or procure the sending of, any unsolicited or unauthorised advertising or promotional material or any other form of similar solicitation |
| 4.6.8 | For the purpose of making an unsolicited communication or storing and/or communicating any material which is offensive, abusive, indecent, defamatory, obscene or menacing, a nuisance or a hoax, or which is a breach of privacy, an infringement of copyright, or is otherwise unlawful |
| 4.6.9 | To make any offensive, abusive, indecent, defamatory, obscene or menacing call to any Customer Services Department representative |
| 4.6.10 | With equipment that is not approved for use with OVIVO Mobile, including, but not limited to, SIM-boxes and SIM-gateways |
| 4.6.11 | To support calls to call forwarding services, onward calling services or calls to telephone numbers which pay a revenue share or resell to others or commercially exploit our Services |
| 4.6.12 | With any 3rd Party systems or applications, that are designed to bypass, prevent or hinder OVIVO Mobile from serving mobile marketing messages as part of the service provided to You |
| 4.6.13 | With any configuration or settings other than that specified on the OVIVO’s website |
| 4.7 | We reserve the right to suspend the Service and terminate the Agreement immediately in the event of a breach by You of any of the provisions of these terms and conditions, or the Partner Network’s terms and conditions of use, including without limitation: |
| 4.7.1 | if You use equipment which is defective or illegal |
| 4.7.2 | if You cause any technical or other problems to the Service |
| 4.7.3 | if in our reasonable opinion You are involved in fraudulent or unauthorised use of the Service; or |
| 4.7.4 | if You resell access to the Service |
| 4.7.5 | if You have provided false or misleading details about yourself |
| 4.7.6 | Complaints have been made regarding your use of OVIVO services |
| 4.7.7 | if requested to by the emergency service or other Government agencies |
| 4.7.8 | if You are abusive or threatening towards any OVIVO member of staff |
| 4.8 | We reserve the right to withdraw or change any customer’s pay-as-you-go service whose use of the service, in the opinion of OVIVO Mobile, meets one of more of the following |
| 4.8.1 | Significantly exceeds usage reasonably expected of a standard customer on the tariff in question |
| 4.8.2 | Provides a potential risk to the degradation of service levels to any other customer |
| 4.8.3 | Puts the mobile network of OVIVO Mobile or its partner at risk |
| 4.8.4 | Knowingly bypasses, suppresses or disables OVIVO Mobile’s marketing messages sent to You as part of the service offered |
| 5 | Charges & Payments |
| 5.1 | The Charges are calculated in accordance with our current tariffs as displayed on our website at www.ovivomobile.com. We may revise the Charges from time to time to reflect market conditions. Please check our website regularly for the current tariffs. If any change is not acceptable You may terminate the Agreement by notifying us in writing and any outstanding balance on your Account shall be refunded. By continuing to use the SIM Card you are deemed to have accepted the change |
| 5.2 | The Service is made available to You subject to the credit available in your Account |
| 5.3 | You can top-up your Account via www.ovivomobile.com. You should read terms and conditions before making payments to your Account |
| 5.4 | We reserve the right to suspend the Service if your Account remains inactive for a consecutive period of 60 days. Should you make or receive a chargeable or non-chargeable call/text/data transfer during this period, your account will remain active. |
| 5.5 | Further, We reserve the right to terminate the Service if following suspension under clause 5.4, your account remains inactive for a further period of 120 days |
| 5.6 | Further, We reserve the right to delete your account and any credit remaining on your account, if following termination under clause 5.5, your account remains inactive for a further period of 180 days |
| 5.7 | If We terminate the Service due to non-payment and/or breach of any of these terms and conditions or the Terms of Use, You may be required to pay a reconnection fee, if the Service is reactivated |
| 5.7 | We may, at our sole discretion, charge you for replacing a SIM Card in the event that your SIM Card is lost, stolen or damaged through no fault of our own |
| 5.9 | The Charges are inclusive of value added tax or any other sales, usage or similar tax applicable in any country where the Service is provided |
| 6 | Termination |
| 6.1 | Either party may terminate this Agreement at any time without notice or explanation |
| 6.2 | On termination of this Agreement We may require You to return the SIM Card at your cost |
| 6.3 | In the event that We terminate the Service and You have paid for credit remaining on your Account We shall refund the amount to You, provided We have received the SIM Card back. Refunds will be credited to the credit or debit card used when topping-up |
| 6.4 | You will not be entitled to any refund where You terminate the Agreement (other than in accordance with clause 5.1) or where we have terminated the Agreement as a result of a breach of these terms and conditions by You |
| 6.5 | Refunds on free credit provided in relation to any promotions, shall not be refunded in the event of Service being terminated by either Party |
| 6.6 | Should You transfer your number away from OVIVO, this constitutes a termination of this Agreement and any outstanding credit on your account, whether paid for or promotional, is forfeit and non-refundable |
| 7 | Intellectual Property Rights |
| 7.1 | As between You and Us, all Intellectual Property Rights and all other rights in the Services and materials provided as part of the Services shall be owned by Us. Subject to clause 7.2 and any other express provision of this Agreement, We license all such rights to You on a non-exclusive, non transferable worldwide basis to such extent as is necessary to enable you to make reasonable use of the Services. The term “Intellectual Property Rights” shall include all patents, rights to inventions, utility models, copyright and related rights, trade marks, service marks, trade, business and domain names, rights in goodwill or to sue for passing off, unfair competition rights, rights in designs, rights in computer software, database right, moral rights, rights in confidential information (including know-how and trade secrets) and any other intellectual property rights, in each case whether registered or unregistered and including all applications for and renewals or extensions of such rights, and all similar or equivalent rights or forms of protection in any media (existing now or in the future) in any part of the world. |
| 7.2 | You acknowledge that, where We do not own a part of the materials provided as part of the Service, your right to continue to use the Service may be conditional upon a licence (or sub-licence) from the relevant licensor or licensors on such terms as will entitle Us to continue to license such rights to You and You hereby agree to comply with the terms and conditions of such licence or sub-licence at all times |
| 7.3 | We retain the entire copyright in our work, content, and materials in connection with the Service at all times throughout the world |
| 7.4 | You shall not, and procure that any third party shall not, copy, modify or distribute any of our work, content or materials incorporating the Intellectual Property Rights |
| 7.5 | You shall be responsible to Us (and indemnify Us in full) for any breach of our Intellectual Property Rights |
| 8 | Limitation of Liability |
| 8.1 | The following provisions set out Our entire financial liability in connection with the Agreement |
| 8.2 | All warranties, conditions and other terms implied by statute or common law are, to the fullest extent permitted by law, excluded from the agreement |
| 8.3 | Nothing in these conditions excludes our liability for |
| 8.3.1 | death or personal injury caused by our negligence; or |
| 8.3.2 | fraud or fraudulent misrepresentation |
| 8.4 | Subject to clause 8.3; |
| 8.4.1 | We shall not be liable for any errors, interruption or delay in the Service, whether within or outside our control |
| 8.4.2 | We shall not be liable under any circumstances to You whether in contract, tort (including negligence) or restitution, or for breach of statutory duty or misrepresentation, or otherwise, for any |
| 8.4.2.1 | loss of profits |
| 8.4.2.2 | loss of business |
| 8.4.2.3 | depletion of goodwill or similar losses |
| 8.4.2.4 | loss of anticipated savings |
| 8.4.2.5 | loss of goods |
| 8.4.2.6 | loss of contract |
| 8.4.2.7 | loss of use of Service |
| 8.4.2.8 | loss or corruption of data or information; or |
| 8.4.2.9 | special, indirect, consequential or pure economic loss, costs, damages, charges or expenses, suffered by You that arises under or in connection with this Agreement, provided that this clause 8.4 shall not prevent claims that are not excluded by any of categories (i) to (ix) inclusive of this clause 8.4(b) |
| 8.4.3 | Our total liability under this sub-clause including all related costs, fees and expenses will not under any circumstances cumulatively exceed the total amount of the Charges paid by You over the last 12 months prior to the incident, and within any 12-month period shall not exceed £250 |
| 8.5 | We shall not be held responsible for any loss, damage or inconvenience You may suffer as a result of emergencies, maintenance or updates |
| 9 | Privacy and Data Protection |
| 9.1 | We shall process all information about You in accordance with our Privacy Policy |
| 9.2 | No opt-out to receiving targeted marketing messages is available |
| 9.3 | While We agree to take all necessary technical and organisational steps to ensure the security of the Service, We are not responsible for the accidental loss or destruction of any personal data You transmit using the Service and We exclude all liability of any kind in relation to the content or security of personal data that You send or receive through the Service |
| 9.4 | You agree and acknowledge that We may be required by law to provide assistance to law enforcement, governmental agencies and other authorities. Accordingly, You agree |
| 9.4.1 | that We and/or the Partner Networks may implement and maintain an interception capability suitable to meet these requirements where We and/or the Partner Networks are obliged by law to ensure or procure that such a capability is implemented and maintained |
| 9.4.2 | that We and/or the Partner Networks may implement and maintain a data retention capability for the Service to meet requirements where We and/or the Partner Networks are obliged by law to ensure or procure that data is retained; and |
| 9.4.3 | We may at times co-operate with law enforcement authorities in the investigation of any suspected or alleged illegal activity, this may include but is not limited to, disclosure of your Account details |
| 9.5 | By registering or activating an Account with Ovivo Mobile, you consent to Ovivo Mobile collecting, processing and sharing Peronsal Data provided by you or generated in the course of supplying the Services to you, including details of voice calls, messages or data that you have sent (“Traffic Data”) and the geographic position of your GSM mobile telephone (“Location Data”) for the purpose of: |
| 9.5.1 | Supplying the Products and Services to you |
| 9.5.2 | The administration of your Account by the Customer Services Department |
| 9.5.3 | Providing you with service information, for example about Network faults |
| 9.5.4 | The prevention or detection of fraud |
| 9.5.5 | Market research and profiling your usage and purchase preferences |
| 9.5.6 | Supplying selected and targeted marketing materials and media to you by web access, SMS, phone, e-mail or post |
| 9.5.7 | Complying with applicable laws and regulations |
| 9.6 | Ovivo Mobile may from time to time monitor or record your conversation with the Customer Services Department. This may be done for quality control purposes, to improve the service, to ensure compliance with governmental, regulatory or enforcement agency requests of to detect fraud |
| 10 | Notices |
| 10.1 | Unless otherwise expressly stated in these terms and conditions, all notices and other communications required or permitted to be given by You under these terms and conditions shall be in writing. All notices and other communications shall be deemed properly served if they have been delivered personally or sent by fax or pre-paid registered post or e-mail to the address set out on our website (in the case of notice given to Us) or to the address provided to Us by You when creating your Account (in the case of notice given to You) |
| 10.2 | Any notice shall be deemed to have been properly served: |
| 10.2.1 | if delivered by hand, on delivery |
| 10.2.2 | if sent by pre-paid registered mail, two working days after posting |
| 10.2.3 | if sent by fax, on confirmation of transmission |
| 10.2.4 | if sent by e-mail, on confirmation of transmission |
| 10.3 | In proving the service of any notice, it will be sufficient to prove, in the case of a letter, that the letter was properly addressed, stamped and placed in the post and, in the case of a fax, that the fax was duly dispatched to a current fax number of the addressee and, in the case of an e-mail, that the e-mail was sent to a current e-mail address of the addressee |
| 11 | Variations |
| 11.1 | We reserve the right to revise and amend these terms and conditions from time to time. You should regularly check our website for any amendments to these terms and conditions. By continuing to use the Service You are deemed to have accepted any amendment |
| 12 | Force Majeure |
| 12.1 | We shall not be liable for any failure or delay in performance of any obligations under the Agreement arising from or attributable to acts, events, omissions or accidents beyond our reasonable control (Force Majeure Event), including but not limited to any of the following |
| 12.1.1 | acts of God, including but not limited to fire, flood, earthquake, windstorm or other natural disaster |
| 12.1.2 | epidemic or pandemic |
| 12.1.3 | war, threat of or preparation for war, armed conflict, imposition of sanctions, embargo, breaking off of diplomatic relations or similar actions |
| 12.1.4 | terrorist attack, civil war, civil commotion or riots |
| 12.1.5 | fire, explosion or accidental damage |
| 12.1.6 | adverse weather conditions |
| 12.1.7 | non-performance by suppliers, subcontractors or the Partner Networks; and |
| 12.1.8 | interruption or failure of telecommunications services |
| 13 | Waiver |
| 13.1 | Any failure to exercise, or any delay in exercising, any right or remedy provided under this Agreement or by law shall not constitute a waiver of that or any other right or remedy, nor shall it preclude or restrict any further exercise of that or any other right or remedy |
| 13.2 | No single or partial exercise of any right or remedy provided under this Agreement or by law shall preclude or restrict the further exercise of that or any other right or remedy |
| 14 | Severance |
| 14.1 | If any provision of the Agreement is found by any court or other authority of competent jurisdiction to be invalid, illegal or unenforceable, that provision or part-provision shall, to the extent required, be deemed not to form part of the Agreement, and the validity and enforceability of the other provisions of the Agreement shall not be affected |
| 15 | No Partnership or Agency |
| 15.1 | Nothing in these terms and conditions is intended to, or shall be deemed to, establish any partnership or joint venture between any of the parties, constitute any party the agent of another party, nor authorise any party to make or enter into any commitments for or on behalf of any other party |
| 16 | Entire Agreement |
| 16.1 | These terms and conditions and any documents referred to in it constitute the whole agreement between You and Us and supersede any previous arrangement, understanding or agreement between them relating to the subject matter of this agreement |
| 16.2 | Each party acknowledges that, in entering into the Agreement under these terms and conditions, it does not rely on any statement, representation, assurance or warranty (Representation) of any person (whether a party to that Agreement or not) other than as expressly set out in these terms and conditions or any documents forming part of the Agreement |
| 16.3 | Each party agrees and undertakes to the other parties that the only rights and remedies available to it arising out of or in connection with a Representation shall be for breach of contract |
| 16.4 | Nothing in this clause shall limit or exclude any liability for fraud |
| 17 | Governing Law and Jurisdiction |
| 17.1 | The Agreement made under these terms and conditions and any dispute or claim arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims) shall be governed by English law |
| 17.2 | Any dispute or claim arising out of or in connection with the Agreement or its formation (including non-contractual disputes or claims) shall be subject to the exclusive jurisdiction of the courts of England and Wales |