1. THESE TERMS AND CONDITIONS
1. You are reading a legal document which is the "User Agreement" (or "Terms and Conditions") between you, a particular user of the Website (whom we refer to as “you” or “your” in this document), and us for your use of the Auracall Service or the Website (as defined below). We are Auracall Limited, a company registered in England under number 04308459 with our registered office at Auracall Limited, Olympia House, Armitage Road, London NW11 8RQ (and we refer to ourselves as "Auracall", “we” or “us” or “our” in this document). If you have any comments, queries or suggestions about the Auracall Service or the Website, you can write to us at this address or email us at email@example.com.
2. Please read this User Agreement carefully. By accessing or using the Website (or enabling anyone else to do so) or by using any facilities or services made available through it, you are agreeing to these Terms and Conditions.
3. These Terms and Conditions were most recently updated on 28th November 2012.
4. We shall keep a copy of these Terms and Conditions, but you are advised to print and keep a copy of these Terms and Conditions and each amended version for your own records and future reference.
1. In this User Agreement, unless the context otherwise requires:
"Account" means a User’s registration for the Auracall Service which enables him to be a User;
"Account" means an Account available for a User through the Auracall Service;
"Auracall Service" means the service provided by Auracall via our website where:
a) Offers for Products and Services are made available to Users;
b) Users may place, or link through to another website to place, an Order for an Offer, Product or Service; and
c) Users can view miscellaneous news items posted on the Website from time to time.
"Business Day" means any day other than (i) a Saturday, (ii) a Sunday or (iii) a day when the clearing banks are not physically open for business in the City of London;
"Confidential Information" means any information in any form or medium obtained by one party from or on behalf of the other pursuant to this User Agreement which is expressly marked as confidential or which a reasonable person would reasonably consider to be confidential whether disclosed or obtained before, on or after the date of commencement of this User Agreement together with any reproductions of such information or any part of this information (and our “Confidential Information” shall include any information relating to our methodology, software, Website, Auracall Service, other Users, and those other Users’ confidential information);
"Fee" means any fee charged by Auracall to a User for that User’s use of a particular element of the Auracall Service;
"Liability" has the meaning given to it in Clause 10.11;
"My Auracall" means the facility on the Website for a User to update their Account details;
"Offer" means the advertising or an offer on the Website for a particular Product or Service;
"Order" means the placing by a User of an order for a particular Product or Service via an Offer;
"Payment Information" means the credit or debit card details you provide to us for the purchase of any Product or Service, or for any particular functionality you want to receive from the Website or via the Auracall Service;
"Product" means a particular product which is available for ordering on or via the Website;
"Service" means a particular service which is available for ordering on or via the Website;
"User" means any person who has registered to use some or all of the Auracall Service;
"Website" means our website from which we provide the Auracall Service to Users, whose current uniform resource locator is at http://home.auracall.com; and
2. In this User Agreement:
1. references to Clauses are to the clauses of this User Agreement;
2. words importing a gender shall include the other gender and the neutral;
3. references to persons and entities include individuals, bodies corporate, firms, partnerships or unincorporated associations;
4. the singular includes the plural and vice versa;
5. the headings to Clauses are inserted for convenience only and shall not affect the interpretation or construction of this User Agreement;
6. references to "includes" or "including" or like words or expressions shall mean without limitation;
7. references to any statute or statutory provision shall include any subordinate legislation made under it, any provision which it has modified or re-enacted (whether with or without modification) and any provision which subsequently supersedes it or re-enacts it (whether with or without modification); and
8. references to "written" or in "writing" (except in respect of sending a notice in accordance with Clause 12.8) includes in electronic form.
3. We reserve the right to amend these Terms and Conditions at any time. All amendments to these Terms and Conditions will be posted in the latest Terms and Conditions online on the Website, although we may also email you with the latest draft. We may introduce the change with or without notice to you, although where we reasonably consider the change to be significant, we shall endeavour to give at least 30 days’ warning of the change. However, in any event, you are responsible for regularly reviewing information posted online and the latest Terms and Conditions to obtain timely notice of all changes. The publishing of revised Terms and Conditions will affect you in one of the following two ways:
1. the revised Terms and Conditions will take effect at or after the commencement of the next payment period, and your continued use of the Auracall Service or the Website will be deemed to constitute your acceptance of the revised Terms and Conditions; or
2. if the revised Terms and Conditions take effect at any time before the next payment period, then should you not wish to be bound by the revised Terms and Conditions you may terminate this User Agreement by notifying us, and you will receive a pro rata monthly refund according to the number of unused full months outstanding.
3. REGISTRATION FOR THE AURACALL SERVICE
1. Please note that you need to register to become a User to use the Auracall Service and the Website.
2. Please note that to use the Website you must be 18 years of age or over and resident in the United Kingdom. You must also have no more than one Account.
3. If you register for the Auracall Service, and we accept your registration, you become a User.
4. To register for the Auracall Service you need to supply us with your name, gender, date of birth, address, email address, telephone number, username (which you may need to replace if your desired one is unavailable), password and such other contact details as we require. You will also be given the opportunity to register other information (for example, Payment Information). You must use your own details and not impersonate another person or adopt a false identity.
5. You must not choose a password that can be readily guessed. If you think that you may have allowed a third party to see or use your password other than with your permission, you must inform us immediately and we will suspend use of the Auracall Service under that password (but in any event you shall be responsible for any use under that password until we do so). You agree to regularly change your password and in any event when we require.
6. All Accounts (and all email addresses supplied to receive information emails) must be registered with a valid personal email address that you access regularly, so that, among other things, administration emails can be sent to you. Any Accounts (or email addresses supplied to receive information emails) which have been registered with someone else's email address, or with temporary email addresses may be closed without notice. We may require Users to re-validate their Accounts (or email addresses supplied to receive information emails) if we believe they have been using an invalid email address.
7. We reserve the right to close Accounts (and shut down receipt of information emails) if any User is seen to be using proxy IPs (Internet Protocol addresses) in order to attempt to hide the use of multiple Accounts, or if a non-UK User pretends to be a UK User, or disrupts the Website or the Auracall Service in any way.
8. You must keep your password strictly confidential and secure and immediately notify us if any unauthorised third party becomes aware of that password or if you become aware of any unauthorised use of your email address or password or there is any breach of security known to or suspected by you. You agree that any person to whom your username or password is disclosed is authorised to act as your agent for the purposes of using (and/or transacting via) the Auracall Service and Website. Please note that you are entirely responsible if you do not maintain the confidentiality of your password. You are also entirely responsible for bringing this User Agreement to the attention of all persons who may access the Auracall Service through your password or your Internet connection.
9. Once you have submitted your registration details to us:
1. we may send you an email acknowledging the submission of your registration details; and
2. we will email you with acceptance or non-acceptance of your registration.
Unless our email expressly states that your registration has been accepted, our email shall be a mere acknowledgement. Should our email state that your registration has been accepted, you must follow the instructions in that email in order to be able to use the Auracall Service. Until you have complied with the instructions in that email, you will be unable to use the Auracall Service generally. The Auracall Service will start as soon as you have complied with the instructions in the acceptance email. Until that point, the Auracall Service will not have started and completion of your registration and profile information will be in preparation for commencement of your use of the Auracall Service.
10. We reserve the right to prevent you using the Website or the Auracall Service (or any part of them) and we reserve the right to decline a new registration, and we or you may also terminate your registration at any time by terminating this User Agreement in accordance with Clause 8.5.
11. When you register to be a User and we accept your registration (and for as long as you are a User) you may register for an Account, in which case you must pay for the Fees relevant for the Account for the relevant period in advance where required. The Fees for, and the details of, any such Account, are as described on the Website from time to time.
12. If you register for an Account, your subscription for the Account will last for the period for which you have paid in advance, and will then automatically renew for the same length of time on the expiry of that period, unless you inform us by amending the section before renewal is due to take place. This claim will be taken to court as an express authority to renew unless you tell us otherwise.
13. If we decide to increase fees then this will not apply until the expiry of the current period, if any, for which you have already paid in advance. We shall give you at least 30 days notice prior to any increase coming into force and you may give notice anytime during that period to cease using any of our Products or Services at the end of the notice period. This will be without penalty or indeed any charge being made in respect of the termination and we shall refund to your Account on a pro-rata basis (accordingly to the number of unused full months outstanding) any advanced payment. We shall make the repayment using the Payment Information previously provided to us.
14. The level of functionality for your Account shall be as described in the Website from time to time and may change, but for any period for which you have paid in advance it shall be no less than at the beginning of that period.
4. PROVISION AND USE OF THE AURACALL SERVICE AND WEBSITE
1. Our provision and your use of the Auracall Service and/or the Website are subject to these Terms and Conditions.
Placing your Order
2. As a User you may be able to view various Offers, based on which you can place an Order.
3. Your potential purchase of a Product or Service can be progressed by you making the Order to us, providing all the necessary information to us on the Website, including the Payment Information, which is then processed to progress the Order.
4. You must ensure that all Orders you place contain full and accurate information.
5. You must not place an Order unless you expect to be able to be fully able to fulfil that Order.
6. Should the Order be placed as outlined in Clause 4.3 above we will respond to you by email either accepting the Order or detailing why the Order has not been accepted. Prior to emailing you with the acceptance or non-acceptance, we may send to you another email merely acknowledging your Order. Unless our email expressly states that your Order is being accepted our email shall be a mere acknowledgement.
1. Until our email accepts your Order, the Order is not considered binding.
2. Prior to your receipt and up to 10 working days of receipt of the acceptance email from us, should you wish to cancel any Order that you have made, you must contact us directly at 0800 651 0055 or email us on firstname.lastname@example.org quoting the order reference number allocated to your Order at the time you made the order on the Website. We will refund any fees paid if cancellation is received in that period.
3. All other aspects of the Order and the Products and Services will be subject to the Terms and Conditions.
7. We give no warranty we will accept any Order that you make via the Website or otherwise. Whether such an Order is accepted is entirely at the discretion of the Third Party Supplier.
8. In the event of any cancellation, for any reason, where you require a refund, you must contact us.
9. You may use your Account for the level of functionality for which you have paid.
Blogs and News
10. From time to time we may post blogs and news stories on the Website for viewing by Users. We are not responsible for the contents or accuracy of any such posts, and such posts are for background information only, as detailed under Clause 10.4. Users must make the relevant enquiries before forming their own opinion and acting based on the contents of any such post.
11. You agree not to cause any other User any loss or liability or interfere with another person's use of the Auracall Service except to the extent that we expressly permit.
12. Information provided by a third party on or through the Website is facilitated by us solely for your convenience only. Your use of such information may be subject to additional terms and conditions of such third party. You agree that sole responsibility for that third party information shall rest with that third party and not us.
13. You agree not to circumvent the Auracall Service or process on the Website or Fees that are due or that would otherwise be due to us if you had used the Auracall Service.
14. We will use our reasonable endeavours to correct any errors or omissions in the Auracall Service or Website as soon as practicable after being notified of them. However, we do not guarantee that the Auracall Service or the Website will be free of faults and we do not accept liability for any errors or omissions. In the event of a fault in the Auracall Service, you should report it by email to: email@example.com.
15. You shall ensure that all information provided by or on behalf of you to us, or the Website is true, complete and accurate and you shall promptly inform us of any changes to such information by updating the details in the “My Auracall” section of the Website.
16. If the Website and the Auracall Service is accessed by you from outside the United Kingdom, this is entirely at your risk. We make no representation that the Auracall Service (or any Services referred to in the Website) is available or otherwise suitable for use outside of the United Kingdom. If you choose to access or use the Website or Auracall Service from or in locations outside the United Kingdom, you do so on your own initiative and are responsible for:
1. ensuring that what you are doing in that country is legal; and
2. the consequences and compliance by you with all applicable laws, regulations, byelaws, codes of practice, licences, registrations, permits and authorisations (including any laws that relate to businesses providing services).
17. We do not warrant that your use of the Auracall Service or the Website will be uninterrupted and we do not warrant that any information (or Offers or Reviews) transmitted via the Auracall Service or the Website will be transmitted accurately, reliably, in a timely manner or at all.
18. We do not give any warranty that the Auracall Service or the Website is free from viruses or anything else which may have a harmful effect on any technology.
19. Also, although we will try to allow uninterrupted access and minimise any downtime to the Auracall Service and the Website, access to the Auracall Service and the Website may be suspended, restricted or terminated at any time for any reason (including for necessary maintenance or introduction of new functionality or content).
20. We reserve the right to change, modify, substitute, suspend or remove without notice any information or service on the Website or forming part of the Auracall Service from time to time without notice to you. Your access to the Website and/or the Auracall Service may also be occasionally restricted to allow for repairs, maintenance or the introduction of new facilities or services. We will attempt to restore such access as soon as we reasonably can.
21. You agree to comply at all times with any instructions for use of the Auracall Service in this User Agreement or which we display on the Website from time to time.
22. Nothing on the Website shall constitute advice specific to your circumstances or a recommendation.
23. We assume no responsibility for the content or services of any other websites or services to or from which the Website or the Auracall Service has links. The links are provided "as is" with no warranty, express or implied, for the information provided within those sites.
24. No one is entitled to frame any of the Website onto another website without our prior written consent (which may be withheld in our absolute discretion).
25. We hereby grant to you a revocable, non-exclusive, royalty-free right to provide a link from another website to the home page of the Website, provided that you do so in a fair and legal way without damaging our reputation or taking advantage of it. In particular:
1. you shall not make any warranties or representations about us, our Auracall Service, our data, our software or our policies except with our prior express authorisation;
2. you shall not say anything that is false, misleading, derogatory or offensive about us or the content of the Website, our Auracall Service, our data, our software or our policies; and
3. you shall not suggest expressly or implicitly that we have endorsed or approved you, any services you offer or your website or are associated with it where this is not the case.
26. The following uses of the Auracall Service (and Website) are expressly prohibited and you undertake not to do (or to permit or encourage or entice or induce anyone else to do), directly or indirectly, any of the following:
1. send or receive any material which is grossly offensive, harassing, threatening, malicious, abusive, of an indecent, obscene, pornographic or menacing character, vulgar, blasphemous or defamatory of any person, in contempt of court or in breach of confidence, or which may infringe any intellectual property rights (including copyright), rights of personality, publicity or privacy or any third party rights of any nature;
2. send or post any information or do anything that unfairly takes advantage of or exploits anyone under the age of 18 or anyone who is not in a fit and proper state to be able to look after their own best interests, nor seek to enter into a contract or agreement with any such person;
3. send or post any inaccurate or incomplete or misleading data or material (including sending any feedback about a Third Party Supplier or the Auracall Service which is not fair or accurate);
4. cause annoyance, inconvenience or needless anxiety;
5. intercept or attempt to intercept any communications transmitted by way of a telecommunications system;
6. use the Website or Auracall Service for a purpose other than which we have designed them or intended them to be used;
7. use the Website or Auracall Service in any way which breaches any laws, regulations, byelaws, codes of practice, licences, registrations, permits or authorisations;
8. use the Website or Auracall Service for any fraudulent, criminal or unlawful purpose or for inciting, encouraging or enticing any fraudulent, criminal or unlawful purpose (including using a payment card which is not yours to use);
9. impersonate any other person or body or misrepresent a relationship (or a lack of a relationship or a different relationship) with any person or body (including wrongfully suggesting we have endorsed or recommended you);
10. do any act or omission that may undermine the Reviews system or use them in any way that is not related to the Auracall Service;
11. do anything other than in conformance with accepted Internet practices and practices of any connected networks;
12. act in a racist, sexist or discriminatory way;
13. do anything in any way which may incite hatred against any ethnic, religious or any other minority or is otherwise calculated to adversely affect any individual, group or entity;
14. do anything in a way that we consider may be contrary to our interests;
15. resell the Auracall Service (or Website) without our prior written consent;
16. furnish false information in relation to any User, including false names, addresses or contact details or fraudulent use of bank account details or payment card numbers;
17. attempt to circumvent our security or network including accessing data not intended for you, log into a server or account you are not expressly authorised to access, or probe the security of other networks (such as running a port scan);
18. use, deliver or transmit any viruses, trojan horses, trap doors, back doors, easter eggs, worms, time bombs, cancelbots or computer programming routines intended to damage, detrimentally interfere with, surreptitiously intercept or expropriate any system, data or personal information;
19. access the Auracall Service (or Website) in such a way as to, or commit any act that would or does, impose an unreasonable or disproportionately large load on our infrastructure;
20. interfere or attempt to interfere with the proper working of the Website or Auracall Service;
21. use the Website for any advertising (except with our express prior consent);
22. execute any form of network monitoring which will intercept data not intended for you;
23. harvest or otherwise collect any information or data about Users without their express consent;
24. send unsolicited mail messages, including the sending of "junk mail" or other advertising material to individuals who did not specifically request such material. You are explicitly prohibited from sending unsolicited bulk mail messages. This includes bulk mailing of commercial advertising, promotional, or informational announcements, and political or religious tracts. Such material may only be sent to those who have explicitly requested it. If a recipient asks to stop receiving email of this nature, you may not send that person any further e-mail;
25. create or forward "chain letters" or other "pyramid schemes" of any type, whether or not the recipient wishes to receive such mailings;
26. send malicious email, including flooding a user or site with very large or numerous emails;
27. harass or abuse or stalk any person;
28. enter into fraudulent agreements or arrangements with other Users (which shall include pretending to be a third party, or to have no relationship with another User when one exists); or
29. make unauthorised use, or forging, of mail header information.
27. The Auracall Service and use of the Website do not include the provision of a computer or other necessary equipment to access the Website. To use the Website you will require Internet connectivity and appropriate telecommunication links. We shall not have any Liability for any telephone or other costs that you may incur.
28. We do not warrant that the Website will be compatible with all hardware and software which you may use. Although we may put in place security measures for your protection, (subject to Clause 10.2) we shall not have any Liability for damage to, or viruses or other code that may affect, any computer equipment, software, data or other property as a result of your access to or use of the Website or your obtaining any material from, or as a result of using, the Website. We shall also not have any Liability for the actions of third parties in breaching any security measures.
Breaking the rules
29. You agree to inform us as soon as you suspect that any User is in breach of any of this User Agreement. Following receipt of your information, we may investigate and decide what, if any, action to take in our absolute discretion. We shall not enter into discussion as to our decision or the results of our investigation.
30. You must not misuse the complaints facility or falsely report any breach of this User Agreement.
Your statutory rights
31. As a consumer, nothing in this User Agreement affects your non-excludable statutory rights.
32. We operate a complaints and dispute resolution procedure. Details of this in written form and of the Ombudsman Service that we use can be obtained by calling 0800 651 0055.
33. Our compensation and refund policy can also be found by contacting firstname.lastname@example.org.
1. Please note that you will always be clearly informed of any applicable Fees before you go ahead with any aspect of the Auracall Service.
2. You must have the authority to use any payment card or account used to pay us, and you must not use any stolen cards or materials. The card or account must have sufficient money available to cover the proposed payment to us.
3. Unless otherwise stated on the Website, all prices due are inclusive of value added tax (if applicable), but exclusive of all other taxes and duties and charges which you shall pay in addition at the same time as payment of other sums due.
4. Unless otherwise expressly provided to the contrary, all payments by you shall be in advance in full. If you have not paid in advance, you will not receive any Product or Service for which you have placed an Order, or any additional functionality that you have registered for on the Website or the Auracall Service.
5. Payment of all sums due shall be made by you in full without any set-off,
6. Renewable periods will be automatically renewed (subject to you having sufficient moneys available on the card or account of which we have details in the Payment Information) unless you make clear in the “My Auracall” facility of your decision not to continue beyond the then current period.
7. Fees will be deducted from the User's card or account permanently and (except where we have materially breached our obligations in relation to the relevant Fee) it will not be added back for any reason except as specifically provided for in this User Agreement.
8. The User is responsible for ensuring that he has enough money available at any one time in the card or account provided in the Payment Information in order to enable any use of the Auracall Service to proceed. If the User does not have enough money available in his account or on his card, then the aspect of the Auracall Service will not proceed, and the User shall indemnify and hold us harmless against any and all losses, liabilities, claims, demands, judgments, settlements, costs and expenses that we incur or suffer as a result.
9. Except to the extent that we are in breach of this User Agreement or otherwise stated in this User Agreement, once any monies received from a User have been applied to an Auracall Service, those monies shall be non-refundable.
6. INTELLECTUAL PROPERTY RIGHTS
1. All intellectual property rights of any nature anywhere in the world (including all copyright, database rights, patents, trade marks, service marks, trade names, designs (including the "look and feel" and other visual or non-literal elements), whether registered or unregistered) in the Website and Auracall Service, information and content and material on or accessible from the Website, any database operated by us, software on the Website and all the Website design, text and graphics, and their selection and arrangement, and all software compilations, underlying source code and software (including applets and scripts) shall remain our property (or that of our licensors). You shall not, and shall not attempt to, obtain any title to any such intellectual property rights. All rights not expressly granted by us are reserved.
2. None of the material described in Clause 6.1 may be reproduced or redistributed without our prior written permission. You may, however, retrieve and display the content of the Website on a computer screen, store such content in electronic form on disk (but not on any server or other storage device connected to a network) or print one copy of such content for your own personal, non-commercial use, provided you keep intact all and any copyright and proprietary notices in any electronic or hard copy of the material or the Website. You shall not otherwise reproduce, modify, copy or distribute or use for commercial purposes any of the materials or content on the Website without our permission.
3. No part of the Website or the material described in Clause 6.1 may be reproduced or stored in any other website or included in any public or private electronic retrieval system or service without our prior written permission or as provided by law.
4. If you quote from the Website, you must do so fairly and give due accreditation to the author and us and reference to the Website.
5. Except to the extent that we expressly permit, you must not modify any material described in Clause 6.1.
6. All rights (including goodwill) in the Auracall or Product or Service names and logos are owned by us (or the Third Party Supply or our or their licensors). Other product and company names mentioned on the Website are the trade marks of their respective owners.
1. Each of you and we shall keep and procure to be kept secret and confidential the Confidential Information of the other party (whether disclosed or obtained before, on or after the commencement of this User Agreement) and shall not use nor disclose the same save:
1. for the purposes of the proper performance of its obligations or exercise of its rights under this User Agreement; or
2. as otherwise permitted by this User Agreement; or
3. with the prior written consent of the other party.
2. Where either you or we disclose Confidential Information of the other party to its employee, consultant, subcontractor, supplier, customer, agent, professional adviser or insurer, it shall do so subject to obligations equivalent to those set out in this Clause 7. Each party shall use its reasonable endeavours to ensure that any such employee, consultant, subcontractor, supplier, customer, agent, professional adviser or insurer complies with such obligations.
3. Each of you and we shall at all times:
1. adopt, retain and keep updated adequate procedures and physical security measures which protect the Confidential Information of the other party from inadvertent disclosure or release to unauthorised persons; and
2. hold the Confidential Information of the other party in strict confidence and in any event with no less standard of confidentiality than that which it applies to its own confidential information.
4. The obligations of confidentiality in this Clause 7 shall not extend to any matter which either you or we can show:
1. is in, or has become part of, the public domain other than as a result of a breach of the confidentiality obligations of this User Agreement; or
2. was in its written records prior to receipt; or
3. was independently developed by it; or
4. was independently disclosed to it by a third party entitled to disclose the same.
6. If either you or we are required to disclose the Confidential Information of the other party under any applicable law, or by order of a court or governmental body or authority of competent jurisdiction, then the party so required may disclose the Confidential Information to the extent required but shall, prior to any disclosure where practicable, give the other party as much notice thereof as practicable and notify and consult with the other party and, at the other party's request and cost, fully co-operate with and assist that other party in opposing any such disclosure.
7. Neither you nor we shall make any announcement of any kind in respect of the subject matter of this User Agreement except with the prior written consent of the other party (not to be unreasonably withheld or delayed) or as is required by law.
8. Subject to Clause 7.6, we may identify you as a User and the type of services provided by us to you (or the type of Services that you provide if you are a Service Provider), provided that in doing so we shall not (without your prior written consent) reveal any of your Confidential Information.
8. TERM, SUSPENSION AND TERMINATION
1. This User Agreement shall commence on the date on which you agree to this User Agreement when submitting your details to become a User. The Auracall Service will commence as soon as you have been accepted as a User and followed the instructions in the first acceptance email that we send to you as a User to continue with registering for the Auracall Service, and further elements of the Auracall Service will commence as soon as you have authorised us to collect payment for any Fee from your card or bank account. Accordingly, you will not have a cooling off period under the Consumer Protection (Distance Selling) Regulations 2000 (or any other similar law) in which to cancel this User Agreement (or any aspect under it) and ask for a refund of any Fees paid, once you have followed the instructions on the initial email that we send to you as the Auracall Service will start at that point.
2. Each of you and we shall be entitled immediately or at any time (in whole or in part), without Liability to the other, to: i) suspend the Auracall Service and/or Website (in whole or in part); ii) suspend your use of the Auracall Service and/or Website (in whole or in part); iii) suspend the use of the Auracall Service and/or Website (in whole or in part) for persons we believe to be connected (in whatever manner) to you or another suspended or terminated or banned User (including who may have the same or similar email address or Internet protocol address to you or them); and/or iv) terminate this User Agreement immediately; if:
1. the other commits any material breach of these Terms and Conditions;
2. you or we suspect, on reasonable grounds, that the other has, might or will commit a material breach of these Terms and Conditions; or
3. you or we suspect, on reasonable grounds, that the other may have committed or be committing any fraud against the other or against any other person.
3. If we suspend or terminate your use of the Auracall Service and/or Website (in whole or in part) under Clause 8.2, you shall not attempt to use or access the Auracall Service and/or the Website directly or indirectly under any other name or User.
4. If we suspend the Auracall Service or Website (in whole or in part), we may refuse to restore the Auracall Service or Website until we receive an assurance from you, in a form we deem acceptable that there will be no further breach of the provisions of this User Agreement.
5. Either you or we may terminate this User Agreement immediately by notice to the other without cause. If we terminate this User Agreement under this Clause 8.5, then provided you have not been in any breach of this User Agreement we will return any Fees paid by you to us on a pro rata basis (according to the number of unused full months outstanding). In all other cases (except to the extent that we have been in material breach of this User Agreement or that we have provided for elsewhere in this User Agreement), any other Fees paid by you shall be non-refundable.
6. Each of your and our rights to terminate this User Agreement shall not prejudice any other right or remedy you or we may have in respect of any breach or any rights, obligations or liabilities accrued prior to termination.
1. You shall fully and promptly indemnify and keep indemnified us against all liabilities, losses, damages, injuries, costs, expenses, fines, demands, claims and proceedings suffered or incurred by us arising (directly or indirectly) out of:
1. any claims or legal proceedings arising from your use of the Auracall Service or Website or use of the Auracall Service or Website through your password, which are brought or threatened against us by any person; or
2. any breach of this User Agreement by you; or
3. any liability owed by you to another User.
10. LIMITATION OF LIABILITY
1. This Clause 10 prevails over all other Clauses and sets forth our entire Liability, and your sole and exclusive remedies, in respect of:
1. the performance, non-performance, purported performance or delay in performance of this User Agreement or the Auracall Service or Website (or any part of it or them); or
2. otherwise in relation to this User Agreement or the entering into or performance of this User Agreement.
2. Nothing in this User Agreement shall exclude or limit our Liability for (i) the tort of deceit; (ii) death or personal injury caused by our Breach of Duty; (iii) any breach of the obligations implied by s.12 Sale of Goods Act 1979 or s.2 Supply of Goods and Auracall Services Act 1982; or (iv) any other Liability which cannot be excluded or limited by applicable law.
3. In performing any obligation under this User Agreement, our only duty is to exercise reasonable care and skill.
4. We do not warrant and we exclude all Liability in respect of the accuracy, completeness, fitness for purpose or legality of any information accessed using the Auracall Service or Website; and we exclude all Liability of any kind for the transmission or the reception of or the failure to transmit or to receive any material of whatever nature. You should not rely on any information accessed using the Auracall Service or the Website to make a purchasing decision – you should make your own enquiries before forming your own opinion and taking any action based on any such information.
5. Save as provided in Clause 10.2 but subject to Clause 10.6, we do not accept and hereby exclude any Liability for loss of or damage to your (or any person’s) tangible property other than that caused by our Breach of Duty.
6. Save as provided in Clause 10.2 but subject to Clauses 10.5 and 10.8, our Liability for loss of or damage to your (or another person’s) tangible property caused by us, our employees, subcontractors or agents acting within the course of their employment during the performance of this User Agreement, shall not exceed £10. Neither corruption of data nor loss of data shall constitute physical damage to property for the purposes of this Clause 10.6.
7. Save as provided in Clauses 10.2 and 10.5, we do not accept and hereby exclude any Liability for Breach of Duty other than any such Liability arising pursuant to the terms of this User Agreement.
8. Save as provided in Clause 10.2, we shall have no Liability for:
1. loss of revenue;
2. loss of actual or anticipated profits;
3. loss of contracts;
4. loss of the use of money;
5. loss of anticipated savings;
6. loss of business;
7. loss of operation time;
8. loss of opportunity;
9. loss of goodwill;
10. loss of reputation;
11. loss of, damage to or corruption of data; or
12. any indirect or consequential loss;
and such Liability is excluded whether it is foreseeable, known, foreseen or otherwise. For the avoidance of doubt, Clauses 10.8.1 to 10.8.10 apply whether such losses are direct, indirect, consequential or otherwise.
9. Save as provided in Clause 10.2, our total Liability to you or any third party shall in no circumstances exceed, in aggregate, a sum equal to the greater of: a) £100; or b) 200% of any aggregate amount paid by you to us in the 12 months preceding any cause of action arising.
10. The limitation of Liability under Clause 10.9 has effect in relation both to any Liability expressly provided for under this User Agreement and to any Liability arising by reason of the invalidity or unenforceability of any term of this User Agreement.
11. In this Clause 10:
1. “Liability” means liability in or for breach of contract, Breach of Duty, misrepresentation, restitution or any other cause of action whatsoever relating to or arising under or in connection with this User Agreement, including, without limitation, liability expressly provided for under this User Agreement or arising by reason of the invalidity or unenforceability of any term of this User Agreement (and for the purposes of this definition, all references to “this User Agreement” shall be deemed to include any collateral contract); and
2. “Breach of Duty” means the breach of any (i) obligation arising from the express or implied terms of a contract to take reasonable care or exercise reasonable skill in the performance of the contract or (ii) common law duty to take reasonable care or exercise reasonable skill (but not any stricter duty).
11. DATA PROTECTION
2. You must have the express consent of any third party (including any relatives or friends) in order for you to disclose or post details about that other third party to us or to the Website and you will be responsible for ensuring that such third party has agreed to this User Agreement before you send any data about them to us or the Website.
3. We may amend or remove data relating to any living individual if they ask us to do so, even if that person is apparently represented by you.
1. No partnership/agency: Nothing in this User Agreement shall be construed to create a joint venture, partnership or agency relationship between you and us and neither party shall have the right or authority to incur any liability debt or cost or enter into any contracts or other arrangements in the name of or on behalf of the other.
2. No other terms: Except as expressly stated in this User Agreement, all warranties, conditions and other terms, whether express or implied, by statute, common law or otherwise are hereby excluded to the fullest extent permitted by law.
3. Assignment: You shall not assign or delegate or otherwise deal with all or any of your rights or obligations under this User Agreement without our prior written consent (which consent we may grant or withhold in our absolute discretion).
4. Force majeure:
1. Neither party shall have any Liability for any breach, hindrance or delay in performance of its obligations under this User Agreement which is caused by an Event of Force Majeure, regardless of whether the circumstances in question could have been foreseen. An "Event of Force Majeure" means any cause outside of the party's reasonable control, including act of God, actions or omissions of third parties (including hackers, suppliers, couriers, governments, quasi-governmental, supra-national or local authorities), insurrection, riot, civil war, civil commotion, war, hostilities, threat of war, warlike operations, armed conflict, imposition of sanctions, embargo, breaking off of diplomatic relations or similar actions, national emergencies, terrorism, nuclear, chemical or biological contamination or sonic boom, piracy, arrests, restraints or detainments of any competent authority, blockade, strikes or combinations or lock-out of workmen, epidemic, fire, explosion, storm, flood, drought, adverse weather conditions, loss at sea, earthquake, natural disaster, accident, collapse of building structures, failure of plant machinery or machinery or third party computers or third party hardware or vehicles, failure or problems with public utility supplies (including general: electrical, telecoms, water, gas, postal, courier, communications or Internet disruption or failure), shortage of or delay in or inability to obtain supplies, stocks, storage, materials, equipment or transportation. Each Party agrees to inform the other upon becoming aware of an Event of Force Majeure, such notice to contain details of the circumstances giving rise to the Event of Force Majeure.
2. The performance of each party's obligations shall be suspended during the period that the circumstances persist and such party shall be granted an extension of time for performance equal to the period of the delay.
3. Each party shall bear its own costs incurred by the Event of Force Majeure.
4. If performance of any obligations are delayed under this Clause 12, each party shall nevertheless accept performance as and when the other shall be able to perform.
5. If the Event of Force Majeure continues without a break for more than three months, either party may terminate this User Agreement immediately by notice to the other, in which event neither party shall be liable to the other party by reason of such termination.
6. No waiver: Unless a party expressly states in writing that it is waiving a particular power, right or remedy in a particular stated instance, no failure or delay or omission by either party in exercising any power, right or remedy under this Agreement or at law shall operate as a waiver of such power, right or remedy; and no waiver in any particular instance shall extend to or affect any other or subsequent event or impair any powers, rights or remedies in respect of it or in any way modify or diminish that party's other powers, rights or remedies under this User Agreement or at law.
7. Severability: If any provision of this User Agreement is held to be unlawful, invalid or unenforceable, that provision shall be deemed severed and where capable the validity and enforceability of the remaining provisions of this User Agreement shall not be affected.
8. Notices: Unless otherwise stated within this User Agreement, notices to be given to either party shall be in writing and shall be delivered by hand or prepaid overnight courier mail or by fax or by email, which shall be sent to you at the contact details supplied to us or the Website or to us at the contact details as specified on the Website. Notices shall be deemed received one full Business Day after the time of despatch.
9. No third party rights: Unless expressly provided in this User Agreement, no term of this User Agreement is enforceable pursuant to the Contracts (Rights of Third Parties) Act 1999 by any person who is not a party to it.
10. Survival: The provisions of Clauses 1, 2, 5, 6, 8, 9, 10, 11 and 12, and the disclaimers in this User Agreement relating to use of the Auracall Service or to third parties, together with those provisions that either are expressed to survive its expiry or termination or from their nature or context it is contemplated that they are to survive such termination, shall survive termination of this User Agreement.
11. Governing law: This User Agreement (and any non-contractual right or obligation arising out of or in relation to it) shall be governed by and construed in accordance with English law and the User hereby submits to the jurisdiction of the English courts. The parties irrevocably agree that the English courts shall have exclusive jurisdiction over any claim or matter brought by the User in relation to this Agreement. Nothing in this Clause 12.11 shall limit our right to take proceedings against the User in any other court of competent jurisdiction. All dealings, correspondence and contacts between the parties shall be made or conducted in the English language.
12. It is your resposibility to ensure compatibility of the service with any monitored alarm systems and you should check this with your alarm system provider. If we suspend the service at any time this will affect the operation of your monitored alarm system and we will not be liable for any losses.