a) By downloading the Application you are agreeing to become bound by these terms and conditions. Please do not download the Application until you are entirely satisfied that you have read, understood and agree with these terms and conditions. We recommend that you print a copy of these terms and conditions for your records.
b) The device from which you initiate a session with us must be the device upon which you wish the Application to operate. We are unable to activate the Application for download on any other device.
c) The process by which you will enter into a contract with us is as follows: when you utilise a given device to request to purchase the Application, we will initiate a session with that same device. In so doing we are deemed to have made an offer to sell to you, subject to these terms and conditions, the Application for use on the device from which you initiated the session with us. You will, at this stage, be presented with certain mobivault site options. Should you choose to text VAULT to 80556 you are deemed to have accepted our offer to sell the Application to you and it is at this point that the agreement with us to purchase the Application at the relevant price is concluded.
d) If you have not seen the terms and conditions on being prompted in accordance with (c) above, for any reason, we invite you to view them at www.mobivault.net.
e) Any variation to these terms and conditions and any representations by us about the Application shall have no effect unless expressly agreed in writing and signed by us.
f) You agree that in purchasing the Application from us you have not relied on any statement, promise or representation made or given by or on our behalf which is not set out in these terms and conditions, which represent the entire agreement between us. However nothing in this paragraph shall exclude or limit our liability for fraudulent misrepresentation.
2 Our liability to you or others
a) Please note that the precise operation of the Application on devices may vary and not all devices will offer complete functionality. However you are assured of the minimum functionality, namely:
(i) encrypted storage on your device of up to 50 passwords or other security sensitive codes or groups of information, of a length of up to 16 characters;
(ii) ability to add, edit and delete the above information;
(iii) encryption of data once a user inputs or edits data and decryption of data once a user seeks to access the data, in both cases by use of a “Master Password.”
b) We cannot be held liable for loss caused directly or indirectly by a third party discovering and utilising the master password nor for any loss relating to the use of the Application should the master password be lost, forgotten or otherwise unavailable, or should the device be unavailable for any reason.
c) The Application has been tested to some of the highest standards within the industry and has met the quality criteria for verification through the Java Verified certification process (www.javaverified.com). Accordingly we are confident of its operational qualities. However we cannot guarantee its operational performance absolutely and in this respect use of the software is at your own risk.
d) Due to the prevalence of viruses in mobile telephony appliances and the incubation periods of some viruses we are unable to warrant its being free of viruses. We will use our reasonable endeavours to ensure the Application is free from viruses (or anything else which may damage your phone or information) but we do not guarantee this. In this respect use of the software is at your own risk.
e) We are confident that it is almost impossible for a third party to breach the security should they come into possession of the device. We have used high quality encryption methods as available at December 2006. However given that technology is developing at a very fast rate we cannot predict the nature and effectiveness of the technology that may be used to attempt to breach the security systems that we have in place in the Application at the time of its release to the market. For this reason we cannot guarantee absolutely that the security of the Application will not be breached.
f) Similarly, given that your personal use of your device will be out of our control we cannot guarantee that the Application will be compatible with existing software you may operate on your device, or will not in some way affect the operation of that software or be affected by it.
g) The flow of data over the telecommunications networks depends in large part on the performance of connections by those telecommunications networks companies, the location of the device to which we are sending the Application, or other factors such as meteorological conditions. Accordingly we will not be held liable for any direct, indirect or consequential loss, costs, damages, charges or expenses caused directly or indirectly by any delay in delivery of or non-delivery of the Application (even if caused by our negligence).
h) All warranties, conditions and other terms implied by the law (save for the conditions implied by section 12 of the Sale of Goods Act 1979) are, to the fullest extent permitted by law, excluded from the agreement.
i) Nothing in these terms and conditions excludes or limits our liability:
i) for death or personal injury caused by our negligence; or
ii) for any matter which it would be illegal for us to exclude; or
iii) for fraud or fraudulent misrepresentation.
j) Save as set out in paragraph 2 (i) above:
i) our total liability to you shall be limited to the sum of £250 for each incident and £500 for a number of incidents in each 12 month period; and
ii) We shall not be liable to you for any loss of profit, loss of business, loss of income, depletion of goodwill or otherwise, or for any loss or damage whether or not reasonably foreseeable at the time you entered this agreement.
k) These terms and conditions set out our entire financial liability to you (to the exclusion of all other duties or liabilities) in respect of:
i) any breach by us of these terms and conditions;
ii) any representation, statement or act or omission including negligence arising under or in connection with the purchase of the Application.
l) We shall not be liable for any defects in the Application unless:
i) You inform us of the defect within 2 days of the time when you discover or ought to have discovered the defect; and
ii) We are given a reasonable opportunity, after receiving the notice, to allow you to download a further Application to that same device again and liaising with you as to any problems you are experiencing in your use of the Application.
m) If we repair or replace such Application or refund in full the price, we shall have no further liability for a breach of any of the above warranties, unless you can show that you have suffered a loss, in which case the provisions below may apply.
n) This clause 2 will apply even after the agreement has ended.
3 Description of the Application
a) The Application will allow you to securely store up to 50 passwords or other security sensitive codes or groups of information, of a length of up to 16 characters, on your mobile device. You will be able to add, edit and delete the above information. The data is encrypted and accessed and decrypted by means of a “Master Password.”
b) All samples, drawings, descriptive matter, specifications and advertising issued by us are published by us for the sole purpose of giving an approximate idea of the layout in and processes of the Application. They shall not form part of the agreement.
4. Downloading the Application
a) You are agreeing to download the Application to your mobile device by choosing TO TEXT keyword VAULT to 80556 and further by agreeing to download the " Application”
b) Should you inadvertently key incorrect information whilst requesting the Application to your device, we would advise you to start the process again in order to ensure the relevant software functions as expected.
c) It is anticipated that you will receive the Application within a very short period of time after requesting a download and negotiating through the on-screen prompts. In the event that you do not receive the Application promptly on requesting a download, please start the process again by attempting to commence a second session with us. As set out in paragraph 4 below you will not be charged in any event until such time as you choose to download the Application, although network charges may apply.
5 Price of the Application
a) Any price quotation for purchase of the Application as displayed on our website or in any other publication is valid and will apply (save in the case of obvious error) for a period of 14 days only from its date of display or, in the case of hard copy media, 14 days from the date of its publication, provided that we have not previously withdrawn it. The price quoted shall be inclusive of any value added tax and all costs or charges due by us to any third parties under any arrangements we may have with third parties, but excludes any delivery and downloading costs referred to in (c) below.
b) You will be committed to paying the price of the Application from the time you choose to TEXT keyword VAULT to 80556 signifying that you accept these terms and conditions.
c) You may also be charged certain costs by your telecommunications network provider. This includes but is not necessarily limited to the cost of SMS messages and downloading the Application, should you choose to do so. Prices (if any) will vary depending on amongst other matters your telecommunications network provider and your user plan. Please contact your telecommunications network provider for further details.
d) We will give you the choice of paying for the Application by either collecting our charges from your device telecommunications network provider or by prior agreement, other means. Should you choose to pay through your network provider you will be invoiced by that network provider in accordance with your agreement with that network provider.
6 Your use
a) Our application is only intended for use by persons resident in England and Wales, Scotland, Northern Ireland and the Isle of Man.
b) By placing an order for the Application, you warrant that:
(i) You are legally capable of entering into binding contracts; and
(ii) You are at least 18 years old; and
(iii) You are resident in England and Wales, Scotland, Northern Ireland or the Isle of Man; and
(iv) You initiated a session with us from such a country or territory in order to purchase the Application.
c) You agree to only use the Application as a consumer and not to exploit it commercially. You must not resell or rent the Application or access to it.
d) The Application will be disabled in certain circumstances, and in other circumstances the data stored pursuant to the Application will be deleted in its entirety. These mechanisms are purely to protect your data from unauthorised access.
e) You are solely responsible for the strength of the master password you use and for your adoption of security-conscious use and storage of your device. We have absolutely no control of these aspects. Accordingly please carefully consider and abide by the Security Precautions as set out on publicly available websites such as http://www.berr.gov.uk/files/file9974.pdf or http://www.microsoft.com/athome/security/privacy/password.mspx or see www.mobivault.net for more information.
7 Cooling Off Period
a) You have the right under the Consumer Protection (Distance Selling) Regulations 2000 to cancel this agreement. After a successful download, if you change your mind and cancel the agreement please email us at refund@mobivault.net . We will confirm your right to cancel the agreement by reference to the date your Application was purchased from us and, subject to confirmation, we will ask you to send your device to us at an address we will provide, together with payment of return postage costs. Once we have removed the Application from your device, which we will use our endeavours to do within 10 days, we will return the device to you and a refund will be raised by us within 28 days to the value of the price you paid for the Application (but excluding all other costs including postage costs and charges).
b) Should you choose to proceed with using the Application you will lose the right to cancel the agreement.
8 Your Privacy
a) We will not use your information for marketing save that we reserve the right to send you details via SMS or WAP or other means of our own products which we think you may be interested in considering. At any time you can let us know if you do not wish to receive such information, by email to help@mobivault.net
b) We will not store or in any way use your name, email address or postal address or any other details which might identify you, should you decide to contact us with these details. The only detail we will store is your mobile phone handset number or other identifying address of the device from which you request the Application.
c) We reserve the right to send to you by SMS essential service updates in relation to the Application.
d) Except as required by law and as permitted under the Data Protection Act 1988 we will not disclose your SMS number or other identifying address of the device from which you request the Application to anyone without your consent except if we sell our business in whole or in part.
e) By agreeing to these terms and conditions you permit your network provider to contact us in order to make payment to us of the price for the Application. We will ask your provider to not disclose any information about you such as your name, address, email address, or details as to your WAP, SMS or call usage, and any such information we receive inadvertently will be destroyed immediately prior to any copying, processing or dissemination.
9 General
a) We may assign the agreement or any part of it to any person, firm or company.
b) As the Application is specific to a specific handset, you will not be entitled to assign the terms of this agreement to any other party.
c) If any clause of these terms and conditions is not legally effective for any reason it will be deemed removed from the agreement, the remaining provisions shall continue to apply and we may replace the clause which is not legally effective with one that is.
d) Any failure or delay by us in enforcing any provision of the agreement is specific to the circumstances prevailing at that time, and shall not be regarded as a waiver of any of our current or future rights under the agreement in any other way.
e) Applicable laws require that some of the information or communications we send to you should be in writing. When purchasing the Application and otherwise dealing with us, you accept that communication with us will be mainly electronic. We will contact you by SMS or by WAP or other means depending upon the nature of your device. For contractual purposes, you agree to this electronic means of communication and you acknowledge that all contracts, notices, information and other communications that we provide to you electronically comply with any legal requirement that such communications be in writing. This condition does not affect your statutory rights.
f) The agreement does not confer any benefit on any third party under the Contracts (Rights of Third Parties) Act 1999.
g) The agreement shall be governed by English law and accordingly the construction, validity and performance of the contract shall be governed in all respects by English law and both parties to it submit to the exclusive jurisdiction of the English courts.
10 Interpretation
a) The definitions and rules of interpretation in this condition apply in these terms and conditions. References to:
“the agreement” are to the agreement between you and us for the sale of the Application which these terms and conditions apply to;
“the Application” are to the security software application created by us and known as Mobivault and as sold in accordance with these terms and conditions;
“device” are to a mobile phone or other mobile or other storage incubator upon which the Application may be downloaded;
“session” are to a device to host dialogue, be it WAP, WEB or other based;
“virus, viruses” are to any manipulating programme which modifies other programmes and replicates itself;
“We, us, our” are to Code Card Devices Limited (registered in England and Wales with Company Registration number 05543625) (trading as Mobivault) whose registered office is at 76 Worple Road, Epsom, Surrey, KT18 7AF
“You, your” are to the person, firm or company who purchases the Application from us.
b) A reference to a law is a reference to it as it is in force for the time being taking account of any amendment, extension, application or re-enactment and includes any subordinate legislation for the time being in force made under it.
c) Clause headings do not affect the interpretation of these terms and conditions.