This document sets out the terms on which YaYaTalk ("YaYaTalk" or "we") will provide either yayaTalk Instant and/or yayaTalk Card (collectively the 'Services') to you, the customer ("you").
You can use yayaTalk Instant by dialing the applicable access number as detailed by us on our website (which may beand changed from time to time with notice of such change being posted on our website) and then dialing your international number (including the "00" prefix).
You can use yayaTalk Card by texting "yaya" (the keyword) to a shortcode (a premium rate text message number). The text message costs £3 or £5 (charged to you by your mobile provider) and for this we will send you a calling card directly to your mobile phone as soon as reasonably practicable after receipt of your text message.
By using the Services, you agree to be bound by the following terms and conditions and acknowledge that we provide the Services to you on these terms. You must read and accept (or reject) these terms and conditions as a condition of you using, or relying on, the Services. If you do not accept these terms then you must not use the Services. You acknowledge that continued use of the Services will be deemed to be an acceptance by you of these terms and conditions. You further acknowledge that you have no right to cancel the calling card under the Consumer Protection (Distance Selling) Regulations 2000.
2. User Obligations
2.1 You shall not use, nor allow any other(s) to use, the Services:
(a) for any improper, immoral or unlawful purpose;
(b) to send a communication which is, or is intended to be, a hoax call to emergency services, or which is defamatory, offensive, abusive, obscene, menacing, threatening, harassing, harmful, invasive of another's privacy, sexist, racist or violent or impersonates another person;
(c) to violate or infringe any rights of, or to cause unwarranted inconvenience or anxiety to, any other person;
(d) in such a way that may damage, interrupt, destroy, corrupt, limit or affect the operation, functionality or quality of the Services, the network or any telecommunications system used to provide the Services;
(e) fraudulently or illegally or contrary to any relevant standard or code; or
(f) for the purpose of re-sale to third parties.
3.1 Except as provided by law, we:
(a) make no warranties, conditions, guarantees or representations as to quality or fitness for a particular purpose, or availability or security of the Services, or that the Services will be free of errors, omissions, interruptions or viruses, or any other warranties, conditions, guarantees or representations whether express or implied, oral or in writing, except as expressly stated in these terms; and
(b) exclude all liability for the accuracy (or inaccuracy) or reliability of any material or other information provided or made available by us or any third party in relation to the Services.
3.2 You acknowledge that access and use of the Services (including any networks or software operating in connection with the Services) may be interfered with by numerous factors outside of our control. Except as provided by law, we make no representations or warranties in respect of accessing or using the Services (including any network or software operating in connection with the Services).
3.3 We are not liable for any failure to perform our obligations if we are prevented from doing so by an event beyond our reasonable control (which may include, without limitation, strikes; labour disputes; acts of God; war; riot; civil action; malicious acts or damage; compliance with any law, governmental or regulatory order, rule, regulation or direction; any act or omission of any government or other competent authority; accident; equipment or services failure, including the unavailability of third party telecommunications services, lines or other equipment; fire; flood or storm).
3.4 You use the Services at your own risk and we will not be responsible for loss or theft of the Services.
4.1 ave in respect of liability for death or personal injury arising out of negligence or for any fraud or fraudulent misrepresentation, YaYaTalk we hereby disclaims and excludes to the fullest extent permitted by law all liability for any loss or damage whatsoever and howsoever incurred including any faults, damages or maintenance to your Services, or any loss, theft or unauthorised use of your Services, or any direct, indirect, consequential, special or secondary loss or damage including any damage to goodwill or property or with respect to loss of data, income or profits or any loss of anticipated savings incurred by you or any loss or damage arising from the consequences of viruses received by you, whether arising in tort (including negligence), contract or otherwise, and arising out of or in relation to your access to or use of or inability to use the Services, or any software or networks used by you in connection with the Services, or in connection with any failure of performance, error, omission, interruption, defect, delay in operation or transmission, computer virus or line, network or system failure even if YaYaTalk or its employees or agents are advised of the possibility of such damages, losses or expenses.
You indemnify us against any action, liability, claim, loss, damage, proceeding, expense (including legal costs) suffered or incurred by us, arising from, or which is directly or indirectly, related to (i) your breach or non-observance of any term of these terms and conditions; or (ii) your use of the Services.
5. Intellectual property
5.2 You agree that you will not, either directly or indirectly, infringe our intellectual property or other property rights (or any of our licensors' rights) in the Services and will not, either directly or indirectly, reproduce, modify, transmit, copy, adapt, sell, publish distribute or communicate the Services or anything contained within the Cards (in part or in full) or otherwise use the Services in a way which will infringe our intellectual property or other property rights (or any of our licensors' rights), except as permitted by law or with our prior written consent.
6. Use of personal information
6.1 We respect your personal information and undertake to comply with applicable Data Protection legislation in place from time to time.
6.2 We may hold information that you provide to us (such as on an application or registration form) or that we may obtain from another source (such as our suppliers, marketing organisations or credit reference agencies). This information ("Your Information") may include your name, address, date of birth, gender, telephone numbers, email address, bank and credit/debit card information, occupation and employment data, lifestyle information and details of how you use our products and services which may include the numbers you call, the type, date, time, location, duration, cost of calls, messages or other communications, the addresses you send messages to and information about your browsing activities when visiting one of our web, WAP or similar sites together with general information about the way you pay and manage your account. We may share Your Information with: companies within The Carphone Warehouse Group PLC group of companies ("CPW Group") and any company or other entity in which CPW Group owns (directly or indirectly) more than 15% of the issued share capital for the purposes described in these terms and conditions (including, without limitation, its fixed line telephony and insurance companies); and in the event that we undergo re-organisation or are sold to a third party, you agree that Your Information may be transferred to that re-organised entity or third party for the purposes and subject to the terms of this Agreement.
6.3 Your Information may be held and used by us for a number of purposes and we may use third parties to support us with purposes which include, without limitation:
6.3.1 processing your orders or applications; administering your account and billing; settling accounts with those who provide related services to us; disclosing your data to bank and debit and credit card companies to validate your debit or credit card details; dealing with requests, enquiries or complaints and other customer care related activities; debt recovery (also using recovery agents and agents facilitating to contact you) and legal actions and all other general administrative and business purposes;
6.3.2 carrying out market and product analysis of Your Information to develop and improve and to tell you about our and CPW Group's products and services, new developments, special offers, discounts and awards which we believe may be of personal interest to you. We may tell you by automated means or otherwise, including by email, fax, mobile text message, MMS, telephone, post and via world wide web, WAP and similar sites subject to any preferences indicated by you at the time you apply to enter into this Agreement or subsequently; contacting you about the products and services of carefully selected third parties and allowing you to receive advertising and marketing information from those selected third parties but without passing control of Your Information to the third party concerned;
6.3.3 passing on data to organisations from which you have ordered any products and services; registering your details and allocating or offering you rewards, discounts or other benefits and fulfilling any requests or requirements you may have in respect of our and CPW Group's loyalty or reward programmes and other similar schemes;
6.3.4 carrying out any activity or disclosure in connection with a legal, governmental, national security or regulatory requirement on us or CPW or in connection with legal proceedings, and for the prevention and detection of crime or fraud and the prosecution of offenders or suspected offenders; or
6.3.5 carrying out activities connected with the running of our business such as personnel training, quality control, network monitoring, testing and maintenance of computer and other systems and in connection with the transfer of any part of our business in respect of which you are a customer or a potential customer.
6.4 You agree to the disclosure by us of the following information to any telecommunications company, debt collection agency, credit reference agency, credit or fraud monitoring scheme, credit provider or security agency:
6.4.1 any information relating to your contract with us including details of how you conduct your account and your obligations to us and your personal financial information;
6.4.2 any information which is covered by our registration under the Data Protection Act 1998 as amended from time to time; and
6.4.3 any information which we are required by an order of any court of competent jurisdiction or by statutory authority to disclose.
6.5 If you wish to use our products or services abroad, for example, if you wish to roam on a network abroad, Your Information may be transferred outside the European Union to that country. Our web, WAP and similar sites may also be based on servers located outside of the European Union. Please note that the data protection and other laws of countries outside the European Union may not protect you as well as those within the European Union.
6.6 It may also be necessary for us to carry out anti-fraud and identity checks on you to help decide whether to accept your application or future applications, to verify your identity and to protect our legitimate interests. Any information obtained in such checks will be passed to credit reference agencies and may be used by third parties to assess applications for credit from you and other members of your household and for debt tracing, crime and fraud detection and prevention and credit management purposes. You further agree that we may use Your Information for operating a publicly accessible directory service unless you instruct us not to.
6.7 A comprehensive description of how we use personal information is publicly available from the Information Commissioner - please see www.dataprotection.gov.uk.
6.8 If you would like us to tell you what information we hold about you, please write to: The Data Controller, YaYaTalk, Britannia House, 958 High Road, London, N12 9RY. We may charge a £10.00 administration fee; please quote your mobile and account number on all requests. You can also call contact us to correct or update any inaccurate or incomplete information and to advise us of any preferences you may have concerning how you can be contacted for marketing purposes or to indicate your preferences for directory entries.
6.9 If you do not wish your details to be used for the purposes described in Clauses 6.2 and 6.3, please write to The Data Controller at the abov e address stating your full name, address, account number and Mobile Phone number. Please note: this will not affect any marketing consent which you have already given to any of the companies referred to in Clause 6.3 in respect of agreements relating to other products and/or services.
6.10 Subject to your rights of objection set out in this Clause, and your right of objection in the registration process, you agree that you consent to us, CPW Group or third parties contacting you for any of the above purposes whether by telephone, email, SMS, MMS or in writing and you confirm that you do not consider any of the above as being a breach of any of your rights under The Privacy and Electronic Communications (EC Directive) Regulations 2003.
6.11 You should be aware that if we are requested by the police or any regulatory government authority investigating suspected illegal activities to provide your user information or information concerning your activities whilst using the Service we shall do so. We also reserve the right to disclose individually identifiable information to third parties where a complaint arises concerning your use that is deemed by us to be inconsistent with these terms.
6.12 We may disclose to third parties aggregated data to the use of the Service provided that a single individual is not identifiable in such data. Information you provide or we hold about you (whether or not under our contracts with you) may be used by us or our agents to: a. identify you when you contact us; b. help identify accounts, services and products which you could have from us from time to time (we may do this using an automatic scoring system, which uses the information you have provided, any information we hold about you and information from other agencies, including credit-reference agencies); c. help run, and contact you about the improved running of, any accounts, services and products we have provided before, or provide now or in the future; d. carry out marketing analysis and customer profiling (including with transactional information) and create statistical and testing information; e. help to prevent and detect fraud or loss; and f. contact you in any way (including mail, e-mail, phone, visit, text or multimedia messages) about products and services offered by us and selected partners. We will only contact you in this way if you have previously shown your consent.We may allow other people and organisations to use information we hold about you to provide services you have asked for; as part of the process of selling one or more of our businesses; if we have been asked to provide information for legal or regulatory purposes; or as part of current or future legal proceedings. From time to time, these other people and organisations may be outside the European Economic Area in countries that do not have the same standards of protection for personal data as the UK. We may also allow your information to be used by other Carphone Warehouse Group companies for them to carry out any of the above purposes. We may monitor and record communications with you (including phone conversations and e-mails) for quality assurance and to make sure that we are meeting our legal and regulatory requirements.We will hold information on your phone use, including the numbers called, date, time, duration and cost of calls, together with information about your location. We will use this information to manage the phone service and provide you with any other services you may ask for. Where you have previously shown your consent, we may use this information to provide you with information about other products and services that we believe will be of value or interest to you. We will keep information for as long as is necessary to provide services you have asked for and until charges for the service cannot be lawfully challenged. We may check your details with one or more licensed credit-reference and fraud-prevention agencies. We and they may keep a record of this search and the payment details from your account, and share it with other organisations. If a person provides false or inaccurate information and we suspect fraud, this is also recorded. This information may be used by us, and other organisations may search these records to a. help make decisions about credit and credit-related services for you and members of your household; b. help make decisions on motor, household, credit, life and other insurance proposals and insurance claims for you and members of your household; c. trace debtors, recover debt, prevent fraud, and manage your accounts or insurance policies; d. check your identity to prevent money laundering, unless you give us other satisfactory proof of your identity; and e. carry out statistical analysis about credit, insurance and fraud.We, and other credit and insurance organisations, may also use technology to detect and prevent fraud. If you need details of those credit agencies and fraud-prevention agencies from which we get, and with which we record, information about you, please send us an email via our contact us page. If you give us information on behalf of someone else, you confirm that you have given them the information set out in this document, and that they have not objected to their personal information being used in the way described in it. If you give us sensitive information about yourself or others (such as health details or details of any criminal convictions of members of your household), you agree (and confirm that the relevant subject of the information has agreed) to us processing this information in the way set out in this document.If you are making a joint application or you have told us about some other financial association with someone else, a 'financial association' between you and that other person (or people) will be made at credit-reference agencies. This will link your financial records with that other person (or people) so that both (or all) your records will be taken into account in all future applications by either or both (or all) of you. This will continue until one of you successfully files a notice with the credit-reference agencies asking that you are no longer financially associated with that person.
7.1 We are entitled at our sole discretion to change, add or remove any part of these terms and conditions and to change, withdraw, add or delete any features of the Services or a related promotion at any time by posting or uploading the change or amended terms and conditions on our website or by notifying you by any other means of communication. Your continued use of the Services after this time constitutes an agreement by you to abide by and be bound by the changes or these conditions of use, as so amended.
8. Breach and Termination
8.1 If, in our reasonable opinion, you breach any provision of these terms and conditions, or your use of the Services is unlawful, we may immediately issue a warning, temporarily suspend or permanently prevent your access to all or parts of the Cads, regardless of whether other users still have access to the Services.
10. Invalidity and inconsistency
10.1 If any part of these terms are unenforceable (including any provision in which we exclude our liability to you) the enforceability of any other part of these terms and conditions will not be affected. In the event any terms contained on the Services or within our website conflicts with these terms and conditions, then these terms and conditions will prevail to the extent of such inconsistency.
11.1 If we need to send notices to you or you to need to send notices to us these must be in writing and can be delivered by hand or first class post to the other's address as stated on the order form and will be deemed to have arrived at their destination 48 hours after posting. References in this agreement to "in writing" also include by SMS and MMS, which must be sent to your mobile phone number, and by e-mail, which must be sent to us, at the address we notify to you by e-mail, or to you, at the address stated in your application form or given to us during the application process or any other e-mail address that you supply to us for the purpose and notices given by SMS, MMS or e-mail shall be deemed to have been delivered the day after the day the notice is sent.
12.1 These terms shall be governed by and interpreted in accordance with English law and the courts of England shall have exclusive jurisdiction to resolve any disputes between us.
12.2 You cannot transfer or try to transfer this Agreement to anyone else unless we agree in writing. We can transfer the benefit and you agree that we can transfer the obligation under this Agreement to any agent or third party we appoint to act on our behalf (including, without limitation, any member of the CPW Group.
12.3 Except in the case of any permitted assignment of this Agreement under Clause 121.2, a person who is not a party to this Agreement has no rights under the Contracts (Rights of Third Parties) Act 1999 or otherwise to enforce any clause of this Agreement.
12.4 Failure by either of us to enforce rights under this Agreement shall not prevent you or us (as the case may be) from taking further action.
12.5 You may address any complaints in writing to: yayaTalk Customer Care, [ ]. Please include your Mobile Phone and account number in any correspondence. In the event that we are unable to resolve your complaint or if you require further information, you may contact the Telecommunications Ombudsman, further details of which can be found at www.otelo.org.uk. Your complaint will be dealt with under TalkTalk Telecom's membership of Otelo and you should quote this in all correspondence with Otelo.
The parties confirm that they have considered the Commercial Agents (Council Directive) Regulations 1993 including the Schedule thereto ("the Regulations") and agree that the Regulations do not apply to these terms and conditions. Accordingly, we shall have no liability to you and you shall therefore have no claim against us for any payment in respect of minimum notice, compensation or indemnity under or pursuant to the Regulations, whether for loss of income, loss of agent rights, loss of goodwill or any analogous loss, upon the termination of these terms howsoever caused.
13. Governing law
13.1 These terms shall be governed by and interpreted in accordance with English law and the courts of England shall have exclusive jurisdiction to resolve any disputes between us.
14. Entire agreement and relationship
14.1 These terms set out the whole of our agreement relating to use of and access to the Services. No agency, partnership, joint venture, employee-employer or franchisor-franchisee relationship is intended or created between you and us by these terms and conditions.