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1. THIS AGREEMENT
1.1 When You ("You"/"Your") open and use a Vlayko account ("Your Account") with Vlayko ("We"/"Us"/"Our") through the vlayko.com website or a Vlayko wap site ("Site") You agree to be bound by these Service Terms.
1.2 Your Account, sending by You of any text message via the Vlayko Service ("Text") and general use of the Vlayko Service as more particularly described below ("Vlayko Service") are subject to these Service Terms. These Service Terms incorporate:
1.2.1 the online form and pages in which You sign up for the Vlayko Service via the Site ("Order Form");
1.2.2 the Site Terms of Use; and
1.2.3 Our Privacy Policy.
Together, these documents constitute Your agreement with Us ("Agreement"). These Service Terms shall prevail over any other terms and conditions or other agreements with Us in the event of any inconsistency. Note that if You sign up to any Vlayko promotion ("Promotion") or other service or offer via the Site or the WAP Site, You will also be bound by the terms of that Promotion or other service or offer as displayed on the Site from time to time.
1.3 These Service Terms were last updated on 21 December 2006.
1.4 Changes to these Service Terms may be made from time to time. We will use all reasonable endeavours to notify You in advance of any key amendments to such Service Terms that may impact on You. Occasionally We may need to amend these Service Terms as a result of government or regulatory requirements or for other legal reasons. In these circumstances We may not be able to give You this prior notice. Your attention is drawn to Your right of termination of Your Account and Your Agreement at any time as detailed in Clause 5 below.
2. THE SERVICE
2.1 We will provide You with the Vlayko Service as described at http://vlayko.com/about_vlayko_sms.php provided that You:
2.1.1 have a mobile phone and network operator that are capable of receiving the Vlayko Service (see the Site for details);
2.1.2 are aged 14 years or above or the Order Form has been completed by Your parent or guardian or other person who pays the bill who will be a party to Your Agreement as guarantor (and, where appropriate, references to 'You' and 'Your' in these Service Terms shall apply to Your parent or legal guardian or other person who pays the bills for Your benefit); and
2.1.3 have a UK mobile phone number (we are not able to deliver the initial WAP settings which gives access to the Vlayko Service to non-UK numbers). (If You do have a UK phone number, You will still be able to use the Vlayko Service when You are abroad but You should be aware that such usage may result in higher data charges from Your mobile operator and is subject to GPRS roaming being available in that country.)
We reserve the right to suspend or terminate Your Account at any time if You do not or We have reason to suspect that You do not meet these requirements.
2.2 You are only able to use the Vlayko Service and therefore to send or view Texts by logging onto the Site. When you are not logged into the Vlayko Service you can of course still send and receive standard SMS in the normal way.
2.3 You can select the "Vlayko Alert" option to be notified that You have received a Vlayko Text if you are not logged in to the Vlayko Service at that time. Please see http://vlayko.com/about_vlayko_sms.php for details.
2.4 You will only be able to send a Text to a non-Vlayko Service user via the Vlayko Service where that other person has a UK mobile phone number. Texts made by You via the Vlayko Service to non-Vlayko Service users are subject to additional charges as set out in Clause 6 below.
3. GETTING STARTED - OPENING AN ACCOUNT
3.1 When You sign up to open Your Account via the Order Form ("Your Order"), We may choose or be required to subject Your Order to additional security checks after You have submitted Your Order before processing any Text. Occasionally this may result in a short delay before Texts can be sent. Depending on the outcome of these enquiries, We may decide to terminate Your Order in which case We will refund to You any monies that You may have already paid, if any.
3.2 You will receive confirmation free of charge once Your Account has been successfully opened ("Confirmation"), and, once You have confirmed this ( by sending back to Us a standard rate charge SMS) You will then be able to access Your Account and the Vlayko Service. The Confirmation will include Your personal code that You need in order to be able to log into Your Account and the Vlayko Service, select a Vlayko tag and to send or read a Text ("Your Code"). You are responsible for maintaining the confidentiality of Your Code and Your password for accessing Your Account and are responsible for all activities that occur under them.
3.3 We do not have the means to check the identity of people using the Vlayko Service and Site and will not be liable where Your Code or password is used by someone else with Your authority or for any use of Your Code or password that is not attributable to Our breach of Your Agreement or Our negligence. You agree to notify Us immediately of any unauthorised use of Your Code or password or any other breach of security of which You become aware. If You lose or forget Your Code or password or otherwise experience any problems, then You can contact Our help desk as set out at the end of these Service Terms.
4. TERM
Your Agreement starts when You submit Your Order Form and continues thereafter until terminated in accordance with Clause 5 below.
5. CANCELLATION/ TERMINATION AND SUSPENSION
5.1 Your Account will be available to You as part of the Vlayko Service immediately following completion of Your Order. Therefore, because the Vlayko Service commences immediately, You will not be entitled to cancel Your Agreement. However, You always have a right of termination as set out below.
5.2 You can terminate Your Agreement and close Your Account at any time by texting 'STOP' to 80468 (free of charge) if You have a UK mobile number or by contacting customer services if You have a non UK mobile number. 5.3 If You:
(i) breach Your Agreement; or
(ii) have not used the Vlayko Service for a period of 12 months or longer,
then We may suspend the provision of the Vlayko Service or terminate Your Agreement.
5.4 Either You or We can terminate Your Agreement immediately on notice to the other (see below for contact details) if an interim order is made, or a voluntary arrangement approved, or if a petition for a bankruptcy order is presented, or a bankruptcy order is made by or in relation to the other party, or a voluntary arrangement is approved or an administration order is made, or a receiver or administrative receiver is appointed over any of the other party's assets or undertaking or a resolution or petition to wind up the other party is passed or presented (otherwise than for the purposes of reconstruction or amalgamation) or if any circumstances arise which would entitle any court or a creditor to appoint a receiver, administrative receiver or administrator or to present a winding-up petition or make a winding-up order in relation to the other party.
5.5 Following termination of Your Agreement for any reason whatsoever You will no longer have any rights over Your Vlayko tag. We may allocate Your Vlayko tag to any other user of the Vlayko Service in our sole discretion once a period of at least nine (9) months has passed.
6. CHARGES AND PAYMENT
Data Charges
6.1 Your use of the Vlayko Service will be subject to data charges applied by and charged to You directly by Your mobile operator for using and browsing the Vlayko WAP Site. These may vary from network to network and You should check with Your operator for details of their charges. We are not responsible for data charge billing and will not be liable for any failure on the part of your operator. Any dispute or query that You may have in relation to such data charges are a matter between You and Your mobile operator only.
Texts to non-Vlayko Service User Rates
6.2 If You wish to use the Vlayko Service to send Texts to non-Vlayko Service users, then charges may apply over and above standard operator data charges as set out at http://vlayko.com/cust/credit.php Advertisements
General Payments Terms
6.3 Please note that You may incur costs in opening and using Your Account (i.e. the SMS, standard call or internet usage time made to make the initial request to open Your Account and to download the Vlayko application). Such service and charges remain outside of Our control and the Vlayko Service and will be billed at Your relevant mobile operator's standard rates.
7. YOUR DUTIES AND RESPONSIBILITIES
7.1 The Vlayko Service and Your Account are provided on the basis that You will not, nor will You permit others to use the Vlayko Service or Your Account other than in accordance with Your Agreement and/or use the Vlayko Service or Your Account: for unlawful purposes; in breach of any licence or third party rights; for inappropriate purposes including without limitation bullying or harassment; for any purpose for which the Vlayko Service or Your Account were not designed including unauthorised use, obtaining or attempting to obtain service by rearranging, tampering with or making connection with any of Our facilities or those of Our partners or by any deception, scheme, false representation or false credit device, or by or through any other fraudulent means or devices whatsoever or in any other manner. You are responsible to Us for the actions or omissions of any person who uses the Vlayko Service provided to You or under Your Account with Your authority or arising as a consequence of Your breach of Your Agreement. You will also be responsible for the content of any Text or other transmission over the Vlayko Service by You or in connection with Your Account or Your Code or password.
7.2 You will compensate Us for any loss, liability, damage and expense, including reasonable legal fees, that We may incur as a consequence of Your breach of these Service Terms.
7.3 Your rights to use the Vlayko Service and Your Account and all rights under Your Agreement are personal to You, and are non-exclusive and non-transferable. You are not permitted to sell, assign, sublicense or grant a security interest in or otherwise transfer any right in Your Account or the Vlayko Service without Our written consent.
8. LIMITATIONS ON LIABILITY
8.1 We will not be responsible for any delay in or failure of the Vlayko Service or in relation to performance of Your Agreement to the extent that it is due to any occurrence beyond Our reasonable control including in relation to any network issues that You experience in sending or receiving a Text.
8.3 Our liability to You under and pursuant to Your Agreement is limited to £500. Beyond such amount, We shall not be liable to You in contract, tort (including negligence that is not directly attributable to Our negligence), for breach of statutory duty or in any other way for:
8.3.1 any economic loss, loss arising from or in connection with loss of revenues, profits, contracts or business or failure to realise anticipated savings;
8.3.2 any loss of goodwill or reputation; or
8.3.3 any indirect or consequential losses that were not contemplated by Us prior to Your use of the HVlayko Service,
suffered or incurred by You.
8.4 Nothing in these Service Terms shall exclude or limit Our liability for death or personal injury resulting from Our negligence or fraud or for the negligence or fraud of Our agents or employees.
9. PRIVACY AND YOUR DATA
9.1 Since You will be providing Us with personal information when You enter into Your Agreement, it is important that You read the Privacy Policy which tells You how We will deal with Your personal information. You will be deemed to consent to the terms of the Privacy Policy when You enter into Your Agreement so we recommend that You read this carefully.
9.2 You are responsible for ensuring that the contact and other details that You provide to Us in Your Order are correct and are kept up to date. You should notify Us of any changes to such details by logging in to vlayko.com and the "My Account" section (please see the end of these Service Terms for Our contact details).
10. DISPUTE RESOLUTION
We refer You to Our Code of Practice for information on how to deal with any disputes that You may have with Us.
11. SEVERANCE
If any provision of these Service Terms shall be found by any court or administrative body of competent jurisdiction to be invalid or unenforceable, such invalidity or unenforceability shall not affect the other provisions of these Service Terms that shall remain in full force and effect.
12. LAW AND JURISDICTION
These Service Terms shall be governed by and interpreted in accordance with the laws of England and Wales or the laws of Scotland where You are a resident there and choose that they shall apply. Disputes arising in connection with these terms shall be subject to the exclusive jurisdiction of the courts of England unless You choose the jurisdiction of Your domicile in Scotland or Northern Ireland.
13. THIRD PARTY RIGHTS
Except insofar as these Service Terms expressly provide that a third party may in his own right enforce a term of these Service Terms, a person who is not a party to these Service Terms has no right under the Contracts (Rights of Third Parties) Act 1999 to rely upon or enforce any term of these Service Terms but this does not affect any right or remedy of a third party which exists or is available apart from that Act. Neither party may declare itself a trustee of the rights under these Service Terms for the benefit of any third party.
14. GENERAL
14.1 In no event will any delay, failure or omission (in whole or in part) in enforcing, exercising or pursuing any right, power, privilege, claim or remedy conferred by or arising under these Service Terms or by law, be deemed to be or construed as a waiver of that or any other right, power, privilege, claim or remedy in respect of the circumstances in question, or operate so as to bar the enforcement of that, or any other right, power, privilege, claim or remedy, in any other instance at any time or times subsequently.
14.2 The rights and remedies provided by these Service Terms are cumulative and (unless otherwise provided in these Service Terms) do not exclude any other rights or remedies available in law.
14.3 Unless expressly so agreed, no modification or variation of these Service Terms shall constitute or be construed as a general waiver of any provisions of these Service Terms, nor shall it affect any rights, obligations or liabilities under these Service Terms which have already accrued up to the date of such modification or waiver, and the rights and obligations of You and Us under these Service Terms shall remain in full force and effect, except and only to the extent that they are so modified or varied.
