TERMS OF USE
1 Definitions
The following words and expressions shall have the following meanings:
‘Account’ means the account that records the number of Credits that are available to your ZygoHub from time to time;
‘Administrator’ means you, the User who has set-up and is responsible for controlling the membership of and otherwise administering the ZygoHub, ‘you’ and ‘yours’ shall be construed as references to the Administrator;
‘Associated Companies’ means in relation to a company any subsidiaries or holding companies of the company and any other companies sharing the same holding companies;
‘Bundle Credits’ means the credits that are credited to the Account of your ZygoHub in consideration for payment of the Monthly Charge as determined by reference to the Price Plan;
‘Charges’ means collectively the Monthly Charge and any payments made in respect of Top Up Credits;
‘Contract’ means the contract between Zygo and you which incorporates these Terms;
‘Credits’ means the Bundle Credits and, where applicable, the Top Up Credits, which are deducted from the ZygoHub’s Account each time a User uses the Services;
‘Customer Service Message’ means any SMS or MMS message sent by Zygo to you and/or Users relating to the Services;
‘Data Protection and Privacy Policy’ means such policy in relation to data protection and privacy as is displayed on the Website from time to time;
‘Message’ means a message sent from or to the Mobile Phone of a User by SMS or MMS via the ZygoHub which is not a Promotional Message or a Customer Service Message;
‘MMS’ means the Multimedia Messaging Service which allows Users to send messages that include multimedia content;
‘Mobile Phone’ means a mobile telephone handset that is capable of receiving the Services;
‘Monthly Charge’ means the monthly charge payable for the ZygoHub in accordance with the Price Plan and, where applicable, any monies due in respect of unpaid Credits used during the preceding month;
‘Network’ means the electronic communications networks (which for the avoidance of doubt includes the Internet) used by Zygo to provide the Services and by the Users for Mobile Phone services;
‘PIN’ means the personal identification number which is allocated to each User when they first set-up or become a member of a ZygoHub and which is notified to them by a Customer Service Message;
‘Price Plan’ means your selected price plan, as varied from time to time in accordance with the Service Guide, which dictates the features of the ZygoHub, including the amount (if any) of the Monthly Charge payable, the number (if any) of Bundle Credits to be credited to the ZygoHub each month, and the maximum number of Users that can be members of the ZygoHub;
‘Promotional Messages’ means any SMS or MMS messages sent to Users by Zygo on behalf of third parties which contain advertisements and promotional material;
‘Roaming’ means a service which allows Users to use their Mobile Phones on networks other than the Network, usually outside the Territory;
‘Services’ means the mobile telephone messaging services provided to you by Zygo and any other services which Zygo may from time to time agree to provide to you, which are more particularised in the Service Guide;
‘Service Guide’ means information about the Services, including information about the Charges and payment procedures, which is available to Users via the Zygo Website, as updated from time to time by Zygo;
‘SMS’ means the Short Message Service that allows the sending of text messages;
‘Terms’ means these terms and conditions and any documents referred to herein which govern the supply of the Services by Zygo;
’Territory’ means the United Kingdom mainland;
‘Top Up Credits’ means credits that are credited to the Account of your ZygoHub in consideration for payments made by you or other Users of your ZygoHub in accordance with the Service Guide;
‘User’ means any individual who is a member of your ZygoHub and ‘Users’ shall be interpreted accordingly;
‘Website’ means the website operated by Zygo located at the URL www.zygohubs.com.
‘Zygo’ means Zygo Communications Limited, a company incorporated in England with registration number 05487111, having its registered office at Lavender House, 36 Mossbury Road, Battersea, London SW11 2PB and its Associated Companies. For the avoidance of doubt, ‘we’, ‘us’ and ‘our’ shall also mean Zygo;
‘ZygoHub’ means the telephone number with which the Users are associated and through which the Services are provided by Zygo.
2 Formation of the contract between you and Zygo
2.1 You will need to register with Zygo via the Website before you can set-up a ZygoHub. As part of the registration process you will be required to confirm your acceptance of these Terms.
2.2 Your Contract with Zygo commences when you click “Accept Terms”. If you choose to click “Cancel” there will be no contract and you will not be able to set-up a ZygoHub.
2.3 Subject to these Terms (including but not limited to the warranties, responsibilities and obligations set out in Clause 8) and any terms and conditions set out in the Service Guide, the other Users of your ZygoHub will be entitled to use the Services without registering with Zygo for the period specified in the Service Guide. However, Users may register with Zygo at any time via the Website and they will be required to register before they can perform certain functions, including purchasing Top-Up Credits for the ZygoHub and, where applicable, changing the Price Plan.
2.4 For the avoidance of doubt, the registration with Zygo of the other Users of your ZygoHub will not result in the formation of a contract between those Users and Zygo. You will be solely responsible for ensuring that all Users comply with these Terms and you will be liable for their acts and omissions regardless of whether or not they have registered with Zygo.
2.5 The Contract between you and Zygo shall remain in force until terminated in accordance with these Terms.
2.6 The provisions of this Clause 2 do not affect your statutory rights.
3 Membership and Administration
3.1 You may invite individuals to become members of your ZygoHub or approve their membership requests in accordance with the Service Guide.
3.2 You agree that by providing Zygo with an individual’s Mobile Phone number you will be deemed to have approved that individual’s membership of the ZygoHub.
3.3 Zygo will use its reasonable endeavours to ensure that a User’s access to the Services will commence within 24 hours of receipt by Zygo of that User’s Mobile Phone number and name or nickname.
3.4 Each User is allocated a PIN the first time they become a member of a ZygoHub. If you are not already a member of a ZygoHub, you will receive a PIN by Customer Service Message once your ZygoHub has been set-up.
3.5 Users’ PINs allow them to access the content of Messages and other information associated with the ZygoHubs of which they are members on the Zygo Website.
3.6 As an Administrator, your PIN will also enable you to carry out certain administrative functions in relation to your ZygoHub on the Zygo Website. Further information about PINs and the administrative functions that you can perform on the Zygo Website can be found in the Service Guide.
4 Provision of Services
4.1 Subject to these Terms, we will use reasonable endeavours to make the Services and any additional services that we agree to provide available to you and the Users at all times, but we cannot guarantee an uninterrupted or fault free service.
4.2 Our ability to provide the Services may be impaired by conditions or circumstances that are beyond our control, including, without limitation, geographic or atmospheric conditions, local physical obstructions, other causes of radio interference, features or functionality of your Mobile Phone and the number of other people using the Network at the same time.
4.3 The Network is not controlled by Zygo and may from time to time be upgraded, modified, subject to maintenance work or otherwise amended by the owner of the Network. Such circumstances may result in the Services being temporarily unavailable. Zygo will take reasonable action to minimise the disruption caused by such circumstances, but some such interruption will not be avoidable.
4.4 We shall not be liable for any failure to provide the Services which is due to any condition or circumstance that is beyond our control.
4.5 We will make reasonable efforts to provide the Services to you and/or the Users while you and/or the Users are Roaming, but we make no warranties or representations in relation to the provision of the Services to you and/or the Users while you and/or the Users are Roaming.
4.6 Zygo will use reasonable endeavours to ensure the security of the Messages you and/or the Users send and receive in relation to the Services, but there is nevertheless a risk that these Messages may be unlawfully intercepted or accessed by third parties other than the intended recipient. Zygo will have no liability for such unlawful interception or access.
4.7 Except where expressly stated to the contrary in the Price Plan, you consent, and you warrant that all the Users consent, to the fact that all Messages and Customer Service Messages may contain advertisements and promotional material of Zygo and third parties.
4.8 Zygo may from time to time request your and/or the Users’ consent to send you and/or them Promotional Messages.
5 Payment for Services
5.1 When you set-up your ZygoHub you will be required to select a Price Plan in accordance with which a specific Monthly Charge will be payable for the ZygoHub. You may change the Price Plan at any time in accordance with the Service Guide.
5.2 The Monthly Charge shall, where applicable, be payable monthly in advance by you.
5.3 In consideration for payment of the Monthly Charge, each month Bundle Credits will be credited to the ZygoHub’s Account in accordance with the Price Plan.
5.4 In addition to the Bundle Credits, you and/or the Users may purchase Top Up Credits for the ZygoHub at any time in accordance with the Service Guide. Top Up Credits will be credited to the ZygoHub’s Account following receipt of payment for the same by Zygo.
5.5 All Users shall be entitled to use the Services unless otherwise suspended in accordance with these Terms and each time the Services are used Credits will be deducted from the ZygoHub’s Account in accordance with the Service Guide based on the number of Messages transferred.
5.6 The Services may be paid for using either Bundle Credits or Top Up Credits. If there are any available, Bundle Credits will be deducted from the ZygoHub’s Account before Top Up Credits.
5.7 Unless expressly stated to the contrary in the Service Guide, unused Bundle Credits will not be available for use in the next monthly period.
5.8 In the event that any Top Up Credits are not used within the expiry period specified in the Service Guide, such Top Up Credits will be removed from the ZygoHub’s Account and will no longer be available for use. No refunds will be paid in respect of Top Up Credits that have been removed from the ZygoHub’s Account in accordance with this Clause 5.8.
5.9 In the event that the ZygoHub’s Account is low on Credits or if there are insufficient Credits available for the proper performance of the Services, Zygo will send a Message to you and the Users notifying them of the same in accordance with the Service Guide.
5.10 We will update the Service Guide from time to time and will give you notice of such updates by sending you a Customer Service Message or an email, or by displaying a notice on the Website. We will give you at least thirty (30) days notice of any increase to the Charges. If you do not accept any such changes you can cancel the Contract and the Services by written notice to Zygo. If you do not cancel the Contract, continued use of the Services after the implementation of the changes will be deemed acceptance by you of such changes.
5.11 Credits will not be deducted from the ZygoHub’s Account when you and/or the Users receive Promotional Messages or Customer Service Messages or when you and/or the Users reply to the same if a reply is requested by Zygo.
5.12 Credits will be deducted from the ZygoHub’s Account in respect of Messages which we have attempted to send but which cannot be delivered to you and/or all or any of the Users regardless of the reason for such non-delivery.
6 Zygo’s rights to terminate or suspend provision of the Services
6.1 We may suspend the provision of the Services to any User if, for a period of two (2) days or more after the most recent Message, Promotional Message or Customer Service Message has been sent to a User’s Mobile Phone, that message cannot be delivered for any reason.
6.2 We may suspend the provision of the Services to you and/or all or any of the Users in whole or in part without notice:
6.2.1 If, where applicable, the Monthly Charge remains due in whole or in part for a period of seven (7) days or more after the due date for payment, as determined by reference to the Service Guide;
6.2.2 if there are problems with the Network or the Network is unavailable to, as applicable, us, you or any of the Users;
6.2.3 if we believe that there has been fraudulent use of a credit or debit card to purchase Top Up Credits;
6.2.4 if we believe that you have failed to comply with one or more of these Terms and/or any terms and conditions set out in the Service Guide, and/or that you have failed to procure that one or more of the Users has complied with these Terms and/or the terms and conditions set out in the Service Guide as are applicable to them;
6.2.5 if we believe that you and/or any of the Users have provided us with any false or misleading information.
6.3 The provision of the Services to you and/or all or any of the Users will be reinstated as follows:
6.3.1 if suspended in accordance with Clause 6.1, when the User sends a Message via the ZygoHub;
6.3.2 if suspended in accordance with Clause 6.2.1, when the Monthly Charge has been paid;
6.3.3 if suspended in accordance with Clause 6.2.2, when the problems with the Network cease and/or the Network is available, as applicable, to us, you or any of the Users;
6.3.4 if suspended in accordance with Clauses 6.2.3 – 6.2.5, at Zygo’s sole discretion.
6.4 If a User has not sent or received any Messages (other than Promotional Messages and Customer Service Messages) for a period of [five (5) months] or more we reserve the right to remove the User from the ZygoHub.
6.5 We may terminate the Contract without notice:
if, where applicable, the Monthly Charge remains due in whole or in part for a period of thirty (30) days or more after the due date for payment, as determined by reference to the Service Guide;
6.5.1 if the Network owner ceases to make the Network available to us or you;
6.5.2 if in accordance with the Price Plan no Monthly Charge is payable for the ZygoHub and no Messages have been sent by you and/or any of the Users for a period of six (6) months or more;
6.5.3 if we believe that you have failed to comply with one or more of these Terms, and/or that you have failed to procure that one or more of the Users has complied with such Terms as are applicable to them, and, if appropriate, you and/or any of the Users have failed to remedy such non-compliance within a reasonable period as required by Zygo and notified to you and/or any of the Users;
6.5.4 if we believe that there has been fraudulent use of your and/or any User’s Mobile Phone or of a credit or debit card to purchase Top Up Credits;
6.5.5 if we believe that you and/or any of the Users have provided us with any false or misleading information.6.5.6 if in accordance with the Price Plan no Monthly Charge is payable for the ZygoHub and no Top Up Credits have been purchased for the ZygoHub by you or any of the Users
6.6 In the event that Zygo terminates the Contract in accordance with Clause 6.5, access to the Services for you and the Users shall cease immediately and all Credits available to the ZygoHub will be removed from the ZygoHub’s Account and will no longer be available for use. No refunds will be paid in respect of Credits that have been removed from the ZygoHub’s Account in accordance with this Clause 6.6.
7 Your rights to terminate these Terms
7.1 You may terminate this Contract at any time by sending an SMS with the text “CLOSE” and your PIN to the ZygoHub or by visiting the Website and following the cancellation procedure set out in the Service Guide.
7.2 For the avoidance of doubt, if you terminate the Contract you and the Users will have no further access to the Services and all Credits available to the ZygoHub will be forfeited. No refund will be payable in respect of forfeited Credits.
8 Your warranties, responsibilities and obligations
8.1 You warrant and undertake that you shall, and that you shall procure that the Users shall:
8.1.1 ensure that Zygo is provided with the correct Mobile Phone numbers of all Users and ensure that Zygo is promptly notified of any changes to the Users’ Mobile Phone numbers;
8.1.2 not use the Services for any improper, unlawful or fraudulent activity;
8.1.3 not use the Services to send any messages or communications that are offensive, abusive, indecent, obscene or menacing;
8.1.4 not use the Services to cause nuisance or annoyance or inconvenience to or to harass others, including by sending unsolicited communications;
8.1.5 not do anything likely to impair, interfere with or damage or cause harm or distress to any persons or to the Network;
8.1.6 comply with reasonable instructions issued by Zygo from time to time relating to the Services;
8.1.7 co-operate with any reasonable security or other checks or requests for information made by Zygo from time to time;
8.1.8 not use the Services in any way that would infringe the rights of any third parties, including but not limited to intellectual property rights;
8.1.9 promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate;
8.1.10 promptly inform us if you receive any notice alleging that your use of the Services infringes the rights of any third party;
8.1.11 be responsible for temporarily suspending the provision of the Services to yourself and/or a User via the Website in accordance with the Service Guide in the event that your and/or any User’s Mobile Phone is lost, stolen or damaged or otherwise not capable of sending or receiving Messages for any reason. Failure to do so may result in Credits being deducted from the ZygoHub’s Account in respect of Messages sent to lost, stolen or inoperable Mobile Phones;
8.1.12 comply with such acceptable usage policy as Zygo has in operation from time to time;
8.1.13 ensure that any Users who are members of your ZygoHub and are under the age of 18 immediately register with Zygo on the Zygo Website in accordance with the Service Guide;
8.1.14 keep your and all Users’ PINs secret and ensure that Zygo is promptly notified if your and/or any User’s PIN is revealed to a third party.
9 Liability
9.1 Nothing in these Terms removes or limits Zygo’s liability for death or personal injury resulting from the negligence of Zygo.
9.2 Zygo will not be liable to you for any indirect or consequential loss including, without limitation, loss of income, business or profits, or any loss or damage that that was not reasonably foreseeable at the time that you enter into the Contract.
9.3 Zygo will not be liable to you if we cannot provide the Services for reasons that are beyond our reasonable control.
9.4 Subject to Clause 9.1 above, our maximum aggregate liability to you under, arising from or in connection with these Terms whether arising in contract, tort (including negligence) or otherwise, shall not exceed the total Charges paid by you in accordance with these Terms.
9.5 Zygo accepts no responsibility for the suitability or content of any Messages sent by Users or any advertisements and promotional material contained in any Messages, Customer Service Messages or Promotional Messages sent on behalf of third parties and does not endorse any views expressed by them therein. Zygo expressly excludes all representations, warranties, obligations and liabilities in connection with Messages and any advertisements and promotional material contained in Messages, Customer Service Messages and Promotional Messages, and the information provided therein.
9.6 You agree to keep Zygo fully and effectively indemnified on demand against any and all claims that may be brought or established against Zygo by a User and any and all losses, claims, damage, costs, charges, expenses, liabilities and demands (including legal fees and expenses) that Zygo may incur or against any proceedings or actions which may be brought or established against Zygo by any person and which arise out of or by reason of any non compliance or breach of these Terms by you and/or the Users however caused.
9.7 In relation to websites operated by Zygo, except as expressly stated herein the information provided is intended as information only and does not constitute advice. Therefore, it must not be relied on to assist in making or refraining from making a decision, or to assist in deciding on a course of action. Such information is presented ‘as is’, without any conditions, warranties or other terms of any kind.
9.8 This Clause 9 shall survive the termination of these Terms for whatever reason.
10 User information
10.1 By accepting these Terms, you agree to, and prior to the commencement of the Services you shall procure the agreement of the Users to, the Data Protection and Privacy Policy.
10.2 You agree that the information that you submit when registering may be used by Zygo or its third party service providers to verify your identity.
10.3 Notwithstanding the provisions of these Terms, Zygo will use your personal data in accordance with such Data Protection and Privacy Policy as it has in place from time to time.
11 Variations to these Terms
We may update or revise these Terms from time to time and will give you notice of such updates by Customer Service Message, email or through a message displayed on the Website. We will give you at least thirty (30) days notice of any changes to these Terms. If you do not accept any such changes you can cancel the Contract and the Services by notice in writing to Zygo. If you do not cancel the Contract, continued use of the Services after the implementation of the changes will be deemed acceptance by you of such changes.
12 Dispute Resolution
12.1 If you have any complaints in relation to the Services please contact Zygo at the address specified on the Website.
12.2 If any dispute arises in connection with these Terms (“Dispute”), you agree that Zygo shall at its discretion be entitled to appoint an Ofcom approved alternative dispute resolution provider of its choosing (“ADR Provider”) and refer the Dispute to that ADR Provider with immediate effect by written notice to you. You may not commence any court or tribunal proceedings in relation to any Dispute until you have attempted in good faith to settle the Dispute through the ADR Provider.
13 Assignment
This Contract is personal to you and you may not transfer the Contract to any third party at any time. We may transfer the Contract to any third party at any time. We may sub-contract all or any of our obligations hereunder to any third party at any time.
14 General
14.1 If Zygo fails, at any time during the term of this Contract, to insist upon strict performance of any of your obligations under these Terms, or if Zygo fails to exercise any of the rights or remedies to which Zygo are entitled under these Terms, this shall not constitute a waiver of such rights or remedies and shall not relieve you from compliance with such obligations.
14.2 A waiver by Zygo of any default shall not constitute a waiver of any subsequent default.
14.3 No waiver by Zygo of any of the Terms shall be effective unless it is expressly stated to be a waiver and is communicated to you in writing.
14.4 If any of these Terms are determined by any competent authority to be invalid, unlawful or unenforceable to any extent, such term, condition or provision will to that extent be severed from the remaining terms, conditions and provisions which will continue to be valid to the fullest extent permitted by law.
14.5 These Terms and any document expressly referred to in them represent the entire agreement between Zygo and you in relation to the Services and supersede any prior agreement, understanding or arrangement between us, whether oral or in writing.
14.6 You and Zygo each acknowledge that, in entering into these Terms, neither of the parties has relied on any representation, undertaking or promise given by the other or implied from anything said or written in negotiations between us except as expressly stated in the Terms.
14.7 These Terms are governed by English law. The Courts of England shall have exclusive jurisdiction over any disputes that cannot be settled using the procedure referred to in Clause 12.