TERMS & CONDITIONS
1. DEFINITIONS AND INTERPRETATION
1.1 In this Agreement:
“App” and “App store”: is where the Numberz App solution is bought and installed to the USER’s mobile phone;
“Answered”: is a phone call received by the USER from the Numberz App solution where the USER is connected to a caller;
“Call charges”: the number description as stated by OFCOM and the corresponding anticipated call costs for a caller to call the USER’S number;
“Codes of Practice”: all legal and regulatory codes of practice, rules of procedure, guidelines, directions, policies and other requirements applicable to the Services including without limitation the Phone Pay Plus (formerly ICSTIS) code of practice as amended from time to time and any and all industry guidelines, as amended from time to time;
“Communications Networks”: the communications networks run by the Communications Network Operators and used by Numberz App;
“ICSTIS”: the Independent Committee for the Supervision of Standards of Telephone Information Services and/or ICSTIS Limited (renamed Phone Pay Plus on 15.10.07) (Numberz App registration number (represented by YPPN Limited): ORG831-25728-78727);
“OFCOM”: the Office of Communications; the regulator for the United Kingdom communications industries (Numberz App registration number (represented by YPPN Limited): ORG831-25728-78727);
“Public Networks”: the Communications Networks Operators and any other network over which the communication of information may be necessary for the purposes of providing or relating to the Services;
“Regular and Regularly”: the definition of ‘regularly’ is a USER receiving more than 1 answered call that is over 20 seconds in length within a single 4 week period. If the USER fails to meet the minimum ‘regular’ usage criteria then Numberz App reserves the right to take back their assigned number and re issue to a different USER. See clause 2.2;
“Regulations”: all enactments, ordinances, pacts, decrees, treaties, codes, directives, orders, notices or official published plans or policies with legal or actual force in any geographical area and/or over any class of persons and all Codes of Practice;
“Regulatory Authority”: any person or authority (including any nation, national or local governmental or international organisation or any subdivision or agency or executive arm of any of them, any court or judicial officer or any securities exchange (with legal power to impose and/or enforce compliance with any Regulations including without limitation Phone Pay Plus and OFCOM;
“Services”: the services to be provided to the USER by Numberz App, as detailed in the Schedule(s) subject to these terms and conditions and any Service(s) specific terms and conditions set out in the Schedule(s);
“Term”: the term of this Agreement as set out in clause 2.1;
“User”: a person using the Numberz App solution to receive telephone calls.
a) Calls to the Numberz App provided numbers ‘Mobile and Landline Numbers’ are charged at the standard mobile and landline network rates according to the network provider. It is not possible to quote actual call costs as this will change from network provider and type of landline and mobile contract. Depending on the originating callers network operator, calls will be charged to them; however, calls between mobile phones are normally included in free call packages.
b) Out bound UK call charges using the Numberz App solution are pre-paid and the following bundle pricing options are offered to the users through the Numberz App Credits screen;
· GB£4.99 = service charge for minutes and texts messaging
· GB£9.99 = service charge for minutes and texts messaging
· GB£29.99 = service charge for minutes and texts messaging
A full list of call charges to destinations (including those outside the UK) is available from Numberz App on request. This includes rates for non-standard calls to premium and short-code services.
c) Numberz App Number Subscription Charges
During the Numberz AppSubscription Plan (Monthly or Annual) you will be charged for your selected Number Subscription Plan. Subscription must be paid in advance and you must have sufficient cleared funds in the account/card linked to your Apple ID connected to your Numberz App Account on the date when the new Subscription Period would commence. Failure to renew your Subscription Plan prior to the expiry of the Subscription Period may result in your Numberz App Number being removed from your Numberz AppAccount.
i) Renewals, 1 month Subscription Plans
One month Subscription Plans include an automatic renewal, which means that unless you cancel your Subscription Plan, through the Numberz App by deleting the Subscription Number in the app Settings (or by contacting Numberz Appin writing by email), during a Subscription Period it will automatically be renewed for the following Subscription Period (subject to you having sufficient funds) and you will be billed for such additional Subscription Period.
ii) Renewals, Annual (12 month) Subscription Plan
If you are on an annual (12 month) Subscription Plan this includes an automatic renewal, which means that unless you cancel your Subscription Plan, through the Numberz App by deleting the Subscription Number in the app Settings (or by contacting Numberz App in writing by email), during a Subscription Period it will automatically be renewed for the following Subscription Period (subject to you having sufficient funds) and you will be billed for such additional Subscription Period.
1.2 References to clauses and schedules are to clauses of, and the schedules to, this Agreement. The Schedule(s) are incorporated into and form part of this Agreement. In the event of any inconsistency between the provisions of clauses 1 to 20 hereof (“these Terms”) and any Service(s) specific terms set out in the Schedule(s) then the provisions of these Terms shall prevail.
1.3 The headings in this Agreement are for convenience only and shall not affect their interpretation.
1.4 Reference to any statute or statutory provision includes a reference to that statute or statutory provision as from time to time amended, extended or re-enacted or consolidated and all statutory instruments or orders made pursuant to it.
1.5 Clause headings are for reference purposes only and do not affect the validity, interpretation or enforceability of this Agreement.
2. COMMENCEMENTS AND DURATION
2.1 This Agreement shall commence on the Commencement Date, which is defined as when the USER purchases the Numberz App and agrees to be bound by the Terms and Conditions, by their action in accepting these Terms and Conditions;
2.2 The duration of this agreement, a USER has to be ‘regularly’ using the Numberz App solution. The definition of ‘regularly’ is a USER receiving more than 1 answered call that is over 20 seconds in length within a single 4-week period. If the USER fails to meet the minimum ‘regular’ usage criteria then Numberz App reserves the right to take back their assigned number and re issue to a different USER.
3. USER OBLIGATIONS
3.1 The USER shall at all times and throughout the Term:-
3.1.1 act in accordance with all Regulations;
3.1.2 not in any publicity or other promotional activity state or imply any approval by any of the Communications Networks Operators or by Numberz App without the express written approval of a duly authorised officer of Numberz App;
3.1.3 not use the Numberz App solution at any time, which is or may be a criminal offence, or which infringes or may infringe any third party intellectual property rights or is or may otherwise be unlawful or the provision, which is or may be contrary to any Regulations;
3.1.4 will forthwith cease to use the Numberz App Solution which Numberz App considers to be or may be in breach of this Agreement;
3.1.5 ensure that before the USER uses the Numberz App solution that all such rights, authorisations, licences, consents and permissions have been obtained or granted and all such requirements of law or of any Regulatory Authority or any other competent authority or public body have been complied with;
3.1.6 fully indemnify and keep fully and effectively indemnified Numberz App and all members, officers, servants and agents of Numberz App against all liabilities, damages, expenses, costs, actions, proceedings, claims and demands and all alleged claims and demands whatsoever arising directly or indirectly out of or in consequence of any breach of this Agreement by the USER;
3.1.7 provide to Numberz App such assistance and/ or information as Numberz App may require in order to comply with all or any requirements at any time and from time to time imposed by any Regulations or by any Regulatory Authority or by its obligations to the Communications Networks Operators, or by any requirements which are or may be applicable to or affect the USER’s use of the Services;
3.1.8 ensure that before the USER starts using the Numberz App solution that all such rights, authorisations, licence, consents and permissions as may be required by the Regulations have been complied with in full (and for the avoidance of doubt Numberz App shall have no obligation to provide the Numberz App solution or any part of them) until such time that the USER has complied with all such obligations to the reasonable satisfaction of Numberz App;
3.1.9 comply with Numberz App directions issued from time to time regarding or relating to the Numberz App solution;
3.1.10 promptly provide to any Regulatory Authority (including without limitation Phone Pay Plus) such information or material relating to any use of the service by the USER as the Regulatory Authority may request (from either Numberz App or the Customer);
3.1.11 not cause, nor knowingly or recklessly allow others to cause, any nuisance, annoyance or inconvenience, whether to Numberz App, the Communications Networks Operators or other Users, by any means including without limitation the sending of any unsolicited communications;
3.1.12 not appoint any third party partner, dealer, distributor or agent to promote, market and/or sell the Numberz App solution without the prior written consent of Numberz App.
3.1.13 not alter, adapt or modify the Numberz App solution in any way without the prior written consent of Numberz App;
3.1.14 immediately ceases to use the Numberz App solution, which breach or may breach any provisions of this Agreement;
4. INCENTIVES AND PROMOTIONS
4.1 In case of misuse or fraudulent activity, Numberz App reserves the right to withdraw, cancel or revoke any offers or incentives, paid or otherwise. All Numberz App incentives and promotions are at the sole discretion of Numberz App. For the avoidance of doubt, any free or promotional call credit is non-refundable.
5. NO UNLAWFUL OR PROHIBITED USE
5.1 You expressly acknowledge and agree to use any Numberz App service solely for lawful purposes. In this respect you may not, without limitation (a) intercept or monitor, damage or modify any communication which is not intended for you, (b) send any unsolicited commercial communication not permitted by applicable law, (c) use any Numberz App service in any fraudulent way, (d) expose any third party to material which is offensive, harmful to minors, indecent or otherwise objectionable. Further, you may not use any Numberz App service in any manner that could damage, disable, overburden, or impair any Numberz App server, or the network(s) connected to any Numberz App server, or interfere with any other party’s use and enjoyment of the Numberz App services.
6. RIGHTS AND OBLIGATIONS
6.1 Without prejudice to Numberz App other rights under this Agreement, Numberz App shall have the right at any time to: -
6.1.1 require the immediate cessation of the provision of the Numberz App solution or other data, matter or thing, which it may determine to have been or to be in breach of this Agreement and/or any Regulations;
6.1.2 bar access to or cease to provide the Numberz App solution or any part thereof at any time if:
(i) the USER is or has been in breach or allegedly in breach or may be or have been in breach of this Agreement and/or any Regulations. Or by direction from a Communications Networks Operators or Regulatory Authority or if in the reasonable opinion of Numberz App there is a genuine risk of such a direction; or
(ii) any person or the USER is doing or suffering anything to be done which in Numberz App opinion relates to the Numberz App solution and which in Numberz App opinion (a) is or was unlawful, (b) has brought brings or may bring Numberz App’s and/or the Communications Networks Operators’ services into disrepute, or (c) was is or may be prejudicial to Numberz App’s commercial interests; or
(iii) either any Communications Networks Operators or Numberz App’s objects to the involvement of any person either any Communications Networks Operators or Numberz App deems to be unsuitable to be connected with or involved in the utilisation of the Numberz App solution and the USER does not cease using such person or prevent such person being connected with or involved in such use of the Numberz App solution.
and in each case Numberz App shall not be liable to the USER for barring access to the Numberz App solution. Numberz App’s rights to bar access or to cease to provide the Numberz App solution. 4.1.2 may be exercised for such period as Numberz App in its sole discretion sees fit.
6.1.3 temporarily suspend access to the Numberz App solution, if at any time the use of the Numberz App solution by the USER is such that it causes congestion to the Numberz App solution and/ or the Communications Networks Operators or disrupts other services or which is, in the opinion of Numberz App’s, excessive. In such circumstances Numberz App shall not be liable to the USER for such suspension.
6.1.4 assign this Agreement or any part of it to a subsidiary from time to time of its holding company or to its holding company.
6.2 Numberz App shall use reasonable endeavours to provide and maintain the Numberz App solution to the USER but Numberz App shall not be liable for any failure to provide and maintain the Numberz App solution in such manner if this arises from a technical or other failure in the Numberz App solution at Network level. Numberz App does not warrant that the Numberz App solution or the Communications Networks Operators or any Public Network will be fault free or free of interruptions.
6.3 Without prejudice to clause 4.5 Numberz App reserves the right from time to time to improve or alter the Numberz App solution as it deems appropriate provided such changes do not substantially change the nature of the service. Numberz App reserves the right to suspend access to part or all of the Numberz App solution as required for the purposes of remedial or preventative maintenance or improvement of the Numberz App solution without liability or responsibility to the USER.
6.4 Numberz App reserves the right to promote their services in such manner as it deems appropriate but hereby agrees not to make reference in its published information to a USER without the prior written consent of the USER such consent not to be unreasonably withheld.
6.5 Numberz App shall not be obliged to give the USER or users or third parties any priority over any other USER of Numberz App with regard to the supply or delivery of the Numberz App solution by Numberz App.
7.1 Without prejudice to the foregoing Numberz App shall be entitled at any time and with immediate effect to suspend access to any or all of the Numberz App solution or terminate this Agreement in all cases without liability in any way.
7.2 Upon termination of this Agreement for any reason:
7.2.1the USER shall cease to promote, market, advertise, sell or solicit for the use of Numberz App solution;
7.3 on the termination of this Agreement Numberz App shall as soon as practicable prevent access by the USER to the Numberz App solution.
7.4 Termination of this Agreement (howsoever arising) shall (except as otherwise expressly set out in this Agreement) be without prejudice to any rights that either party may have against the other which have accrued up to the date of termination.
7.5 The USERS allocated number will be retained by Numberz App and reallocated to a different USER. If the USER wished to continue to use the Numberz App numbers allocated then the USER will have to enter into an additional agreement with Numberz App for the continued use of the number outside the Numberz App solution.
8. LIMITATION OF LIABILITY
8.1 The warranties of Numberz App expressly set out in this Agreement are given and accepted in substitution for any representation or warranty which may have been made by the Numberz App (or the sales staff or agents of Numberz App) prior to the acceptance of this Agreement.
8.2 Notwithstanding anything contained in this Agreement, in no circumstances shall Numberz App be liable, in contract, tort (including negligence or breach of statutory duty) or otherwise howsoever, and whatever the cause thereof, (i) for any increased costs or expenses, or (ii) for any loss of profit, business, contracts, revenues, or anticipated savings, or (iii) for any special indirect or consequential damage of any nature whatsoever.
8.3 With the sole exception (where the USER is a natural person) of liability for death or personal injury suffered by the USER and caused by the wilful act or negligence of Numberz App as defined in Section 1 of the Unfair Contract Terms Act 1977 Numberz App’s liability under clause 6.2 shall be to the exclusion of any other liability to the USER whether contractual, tortious or otherwise for defects in the Numberz App solution, for any death or personal injury caused by the Numberz App solution, or for any loss or damage to or caused by the Numberz App solution.
8.4 Neither party shall be liable to the other in respect of any breach of this Agreement caused by revocation or alteration of any licence, permission or authorisation governing the operation of any of the Numberz App solution, the Communications Networks Operators or any other Public Network from time to time.
8.5 Numberz App makes no warranty or representation that the provision to the USER and/or to Users of access to the Numberz App solution or associated service is permitted under such licence, permission, authorisation or legislation
9. OFFERS AND ACCEPTANCE
9.1 By using the Numberz App Service, you signify your acceptance of the then current Terms.
9.2 From time to time the Company may modify the Terms. Accordingly, please continue to review the Terms whenever accessing or using the Numberz App Service. If at any time you do not wish to accept the Terms, you should not use the Numberz App Service from such time.
Nothing in this Agreement shall create or be deemed to create a commercial agency partnership or joint venture between the parties and neither party shall be responsible for the acts or omissions of the employees or representatives of the other party.
The USER may not assign or transfer any of its rights or obligations under this Agreement nor may it sub contract (the performance of any of its obligations hereunder) without the prior written consent of Numberz App.
12. ENTIRE AGREEMENT
12.1 This Agreement (including the documents and instruments referred to herein) supersedes all prior representations, arrangements, understandings and agreements between the parties (whether written or oral) relating to the subject matter hereof and sets forth the entire complete and exclusive agreement and understanding between the parties hereto relating to the subject matter hereof.
12.2 The USER warrants to TP that it has not relied on any representation, arrangement, understanding or agreement (whether written or oral) not expressly set out or referred to in this Agreement.
12.3 Without prejudice to the generality of the foregoing save as expressly provided in this Agreement, (a) Numberz App gives no promise, warranty, undertaking or representation to the Customer, (b) Numberz App shall be under no liability in respect of the transactions contemplated by and the subject matter of this Agreement (c) all other warranties express or implied by law, legislation or otherwise howsoever are hereby expressly excluded.
12.4 The USER further agrees and undertakes to the other that its remedies for breach of this Agreement shall be solely for breach of contract, which remedies shall be subject to and in accordance with the provisions of this Agreement.
This Agreement shall be governed according to English law and the parties hereby submit to the jurisdiction of the English Courts.
14. THIRD PARTIES
14.1 Subject to clause 14.2, nothing in this Agreement is expressly or impliedly intended to confer on any third party any right to enforce any of its provisions pursuant to the Contracts (Rights of Third Parties) Act 1999.
14.2 Notwithstanding clause 17.1, pursuant to section 1 of the Contracts (Rights of Third Parties) Act 1999, Phone Pay Plus shall be entitled to directly enforce against the USER the terms in this Agreement under which the USER is required to comply with the Codes of Practice and Phone Pay Plus shall be entitled to directly enforce against the USER any directions made by Phone Pay Plus under the Codes of Practice.
This Agreement may be executed in any number of counterparts, and by the parties to it on separate counterparts, each of which shall be an original, but all of which together shall constitute one and the same instrument.
No failure or delay by Numberz App to exercise any right or remedy under this Agreement shall be deemed to be a waiver of that right or remedy, or prevent Numberz App from exercising that or any other right or remedy on that occasion or any other occasion.
If any provision of this Agreement is declared by any judicial or other competent authority to be void, voidable, illegal or otherwise unenforceable then the remaining provisions of this Agreement shall continue in full force and effect. The judicial or other competent authority making such determination shall have the power to limit, construe or reduce the duration, scope, activity and/or area of such provision, and/or delete specific words or phrases as necessary to render such provision enforceable.