Terms & Conditions
BY REGISTERING FOR, DOWNLOADING IN PART OR IN WHOLE, OR USING ANY OF THE GIST MOBILE SERVICES YOU AGREE TO BE BOUND BY THESE TERMS AND CONDITIONS.
The services under these terms and conditions (the “Terms and Conditions”) are provided by Gist Mobile Ltd.
In these Terms and Conditions, “Gist Mobile “, “we “, “us“, or “our” means Gist Mobile Ltd and “you” and “your” means you; our Customer. Gist Mobile Ltd is a limited company incorporated in the UK registered under Company No. 11584577 and with registered office at 71-75 Shelton Street, London, Greater London, United Kingdom, WC2H 9JQ.
The Gist Mobile service will allow you to communicate with other persons including other Gist Mobile service users. Some categories of communications or services may be Gist Mobile Paid Services and require you to purchase credit in order to use them.
The terms for Services only cover the terms on which you may use the Services. They do not cover your purchase of your Device or access to the internet via Wi-Fi or mobile data which you must provide, set up and separately pay third party suppliers for. Furthermore, you acknowledge that these Third-Party Suppliers Services will be subject to their Terms and Conditions which, for the avoidance of doubt will still be binding upon you in respect of your use of the Gist Mobile Service.
You expressly acknowledge that our Services do not provide you with the ability to make emergency service calls. For Emergency Calls you further acknowledge that Gist Mobile is not a replacement for your primary telephone service.
It is your responsibly to ensure you keep any device on which you use the Service secure so that it cannot be accessed by others who then use your account without your permission. Gist Mobile cannot be held responsible if you do not do this
Services will be provided within our own, our suppliers and our network provider’s network areas but it’s always possible that the quality or coverage may be affected at times.
You must not use the Services for any illegal or improper purposes. Anyone under 18 is not permitted to access Age Restricted Services
The service is not suitable for anyone under the age of 13. We encourage parents to be involved in the online activities of their children to ensure that no information is collected from a child without parental permission
You agree that we and our network provider can process your personal data, which we collect or which you submit to us during any sales or registration process, for a number of purposes, including to open and manage an account for Services, to deliver products and services ordered by you, for credit checking and fraud prevention, and for product analysis and direct marketing (subject to your preferences) as set out in our ‘Privacy Notice’ in the Terms for Services.
TERMS FOR SERVICES
1 About your agreement
1.1 It is your responsibility to make sure any phone number is only used to access Services as permitted in this agreement.
1.2 This agreement does not cover the supply of your Device. The manufacturers of Devices are not related to us. Any terms relating to Devices will be given to you separately.
2 What we will provide for you
2.1 An Application – You must download and use the Gist Mobile Application onto every device on which you intend to use the Gist Mobile Service.
2.2 A Phone Number – We will open an account for you and may offer you a Gist Mobile virtual phone number (and we may agree to provide you with additional phone numbers on your request)
3.1 In consideration of and subject to your payment of our Charges or any other amounts you owe to us under these Terms and Conditions, Gist Mobile will give you for the duration of the Agreement between us and for the purposes of these Terms and Conditions only, a personal, limited, non-transferable, revocable, non-exclusive right and licence to use any part of the Services which we agree to provide to you.
3.2 You shall not:
3.2.1 seek to copy, data-mine, cache, reverse engineer, decompile, disassemble or otherwise extract data from the Service except as otherwise agreed in these Terms and Conditions;
3.2.2 obtain or claim any ownership in any software (or in any derivation or improvement) connected to the Services;
3.2.3 sublicense the use of the Services to any person; and/or
3.2.4 create, write or develop any derivative software or any other software based on the Services utilising the proprietary and Confidential Information of Gist Mobile or a third-party licensor of Gist Mobile.
4.1 Once you have registered and verified your account, we will provide you with access to our Services.
4.2 You will also be able to upload and send your own content using the Services. You grant us and our network provider a royalty free, perpetual and worldwide licence to store, transmit or otherwise deal with any content you upload on the Services.
4.3 We may:
(a) change or withdraw some, or part, of the Services from time to time. This may be because of changing technologies, obsolescence, new or different product features, changing content providers or the need to remove, replace or modify content. Subject to Clause 7.1, you can end the agreement if this variation is likely to be of detriment to you as explained in Clause 20; and
(b) also determine how Services are presented and delivered to the Device or are otherwise made available to you. We can change the way they are presented, delivered or otherwise made available to you at any time.
(c) from time to time Gist Mobile may, at its own digression, offer various promotions or trials giving free credit or free minutes. Gist Mobile reserves the right to withdraw or amend these promotions or trials at any time without prior warning, and furthermore expire any unused free credit or free minutes after 30 days unless otherwise stated in the promotion or trial.
5 Gist Mobile Numbers
5.1 Once you have an account, we may offer you Gist Mobile numbers for one or more countries.
5.2 You may rent up to four Gist Mobile Numbers for use on your Gist Mobile account.
5.3 For a limited period of time, Gist Mobile may allocate you a Gist Mobile number free of a rental charge with a new Gist Mobile account which you can choose to take up at any time during the free Gist Mobile number offer period. However, should you refuse this number, at any time cancel it, convert it to a number which you choose to pay rental for, or should it expire, you will not be eligible for another free Gist Mobile number. You will however be able to rent additional Gist Mobile numbers.
5.4 Gist Mobile will charge a rental for all other Gist Mobile numbers. The rates for these are available in the Gist Mobile app.
5.5 Calls received by any Gist Mobile US or Canada number will be charged for. The rates for these are available from the Gist Mobile app. If you do not have credit in your account, you will not receive any calls or voicemails to your US/Canada number. It is free to receive SMS to your Gist Mobile US or Canada number
5.6 No charge for calls and SMS received by any other Gist Mobile number. It is free to receive calls and SMS to any Gist Mobile number that is not for the US or Canada.
5.7 Calls and SMS sent from any Gist Mobile number will be charged for. These charges can be found on the Gist Mobile website or in the Gist Mobile app.
5.8 Managing a free Gist Mobile number. Your free Gist Mobile number will expire after 30 days unless at least one “event” takes place in that period. An event is when you make or receive at least one answered call, you receive one voicemail, or you send or receive at least one SMS on your free Gist Mobile number.
5.8.1 After every event on a free Gist Mobile number, you have a further 30 days free rental period for that Gist Mobile number. Free rental periods are not cumulative
5.8.2 At any time you can choose to convert your free Gist Mobile number to a rented Gist Mobile number, providing that number is still live on your account. Once the number has been converted you will pay a rental fee for it from then on, and for as long as you keep that number.
5.9 Other Gist Mobile numbers.
5.9.1 Rental for Gist Mobile numbers must be paid in advance. In order to pay for a new rental period, you must have sufficient funds in your account to cover the amount of the rental and, whilst logged into your account you must follow the link to confirm that you wish to purchase a new rental period. It is your responsibility to ensure that you do this on time, otherwise the number may expire and be removed from your account.
5.9.2 For any Gist Mobile number where at least one month’s rental has been paid, there will be a grace period of up to 14 days after the paid rental period ends, during which your virtual number will not be removed from your account and the number will continue to work normally. When you renew the rental for this number however, the rental will be backdated to the date on which the previous rental period expired.
5.10 Porting Gist Mobile Numbers in and out of the Service.
5.10.1 You can port your Gist Mobile UK number out of our service.
To port a UK number out contact email@example.com.
We may charge you a fee when porting a number out of our service. If we do, we make this clear on the relevant instruction pages on our website.
5.10.2 You can port an existing UK mobile phone number which you own into the Gist Mobile service.
To port a UK number in contact firstname.lastname@example.org.
We may charge you a fee when porting a number into our service. If we do, we make this clear on the relevant instruction pages on our website.
6 Gist Mobile Peer to Peer Services
6.1 Over the Internet, you can make and receive free peer to peer calls and send and receive free messages and/or files (including pictures.) To do this you and the person to whom you are sending have live Gist Mobile accounts and both be connected to the Internet via Wi-Fi or mobile data. You do not need a credit balance on your Gist Mobile account to use the peer to peer service.
6.2 The peer to peer service will operate from your main SIM number only, the profile created with your SIM number. This number must also be your Username. You cannot use peer to peer services with Gist Mobile numbers.
6.3 You agree that Gist Mobile may impose limits on the use of the Peer to Peer service in order to ensure “fair use” and to protect the Gist Mobile Service and networks, in particular if it appears to Gist Mobile that the Gist Mobile Service or networks are being resold or otherwise misused, including through their use or access using any software of system not distributed or authorised by Gist Mobile.
7 Disruption to Services
7.1 There may be situations when Services are not continuously available, or the quality is affected and so we cannot guarantee continuous fault-free service. For instance:
(a) when we or our network provider need to perform upgrading, maintenance or other work on the network or Services; and
(b) because of other factors outside our control, such as poor internet connectivity causing jitter packet loss and poor voice quality, the features or functionality of your Device, regulatory requirements, lack of capacity, interruptions to services from other suppliers, faults in other communication networks, the weather or radio interference caused by hills, tunnels or other physical obstructions.
8 What you will do in return
Set up and verify your account.
8.1 To set up a Gist Mobile account you must follow the verification procedure. If you fail to do so we will not open an account for you.
Secure your Password and Devices.
8.2 You must keep your Gist Mobile portal password secure and confidential. You are also responsible for the security of your Device and must ensure that you keep it secure (please refer to the Device manufacturer’s user guide for details of how to keep your Device secure).
8.3 You should immediately change your password if you become aware that someone is accessing Services on your account without your permission.
8.4 You can log into Gist Mobile via your Facebook account and are reminded you should also keep these details secure as, if you accept this option you can be logged into Gist Mobile whenever you are logged into Facebook.
8.5 To the maximum extent permitted by applicable law, you are fully responsible for all activities that occur in relation to the use of the Services, including but not limited to the use of your Gist Mobile Account.
Responsible use of Services
8.6 In respect of your use of the Service, you shall:
8.6.1 ensure that you or your representatives, provide true, accurate, current and complete information about yourself as prompted by the customer registration form;
8.6.2 maintain and update this information to keep it true, accurate, current and complete. Information about a user shall be referred to as “User Data “. If any information provided by you is untrue, inaccurate, not current or incomplete, Gist Mobile has the right to suspend or terminate your account immediately and refuse to provide you with any and all current or future use of any Gist Mobile Service
8.7 You may only use Services:
(a) If you are over 13 years of age. This service is not suitable for anyone younger than this.
(b) as laid out in this agreement; and
(c) for your own personal use. This means you must not resell or commercially exploit any of the Services or content and you must not impersonate or create a false identity of any person, including but not limited to a Gist Mobile Official, forum leader, guide or host.
8.8 You must not use Services or phone number or allow anyone else to use Services or phone number for illegal or improper uses. For example:
(a) for fraudulent, criminal or other illegal activity;
(b) in any way which breaches another person’s rights, including copyright or other intellectual property rights;
(c) to copy, store, modify, publish or distribute Services or content (including ringtones), except where we give you permission;
(d) to download, send or upload content of an excessive size, quantity or frequency. We will contact you if your use is excessive;
(e) in any way which breaches any security or other safeguards or in any other way which harms or interferes with our network, the networks or systems of others or Services;
(f) to falsify or delete any author attributions, legal or other proper notices or proprietary designation or labels of the origin or source of software or other content contained in a file that you upload; and
(g) to use or provide to others any directory or details about customers.
8.9 You must always co-operate with us and follow our reasonable instructions to ensure the proper use and security of the Services and your account and inform email@example.com immediately if you believe that the security of your account has been breached. You must only use Devices authorised by us for Connection to our network and comply with all relevant legislation relating to their use.
Responsible use of Messaging and Storage Services
8.10 While using the Messaging Services, you must not send or upload:
(a) anything that is copyright protected, unless you have permission;
(b) unsolicited bulk or commercial communications or other unauthorised communications, or knowingly send any viruses; or
(c) anything that is obscene, offensive, abusive, defamatory, menacing, harassing, threatening or is unlawful in any other way.
8.11 We may put limits on the use of certain Services, such as Messaging Services or Storage Services. For example, we may limit the size of messages or storage space.
Responsible use of Age Restricted Services
8.12 If you are 18 or over and you access the Age Restricted Services, you must not show or send content from the Age Restricted Services to anyone under 18. You must also ensure that you have deactivated any access to Age Restricted Services if you let anyone under 18 use your Device. Those under 18 are reminded that they should not access any Age Restricted Services.
Responsible use of Services outside the UK
8.13 If you use Services from a country outside the UK, your use of the Services may be subject to laws and regulations that apply in that other country. We are not liable for your failure to comply with those laws or regulations.
9 Emergency Service Calls
9.1 YOU EXPRESSLY ACKNOWLEDGE AND AGREE THAT EMERGENCY CALLS ARE NOT INTENDED TO BE CARRIED/SUPPORTED BY GIST MOBILE SOFTWARE OR SERVICES AND CANNOT BE GUARANTEED AND THAT NEITHER GIST MOBILE NOR ANY OF OUR AFFILIATES, SUBSIDIARIES, PARENT COMPANIES, AGENTS, NETWORK SERVICE PROVIDERS, PARTNERS, OR EMPLOYEES ARE OR WILL BE LIABLE FOR THE INABILITY TO MAKE SUCH CALLS. ADDITIONALLY, YOU EXPRESSLY ACKNOWLEDGE THAT GIST MOBILE SOFTWARE AND/OR SERVICES WILL CEASE TO FUNCTION DURING A POWER FAILURE AND/OR DISRUPTION TO YOUR INTERNET CONNECTION AND YOU WILL NOT BE ABLE TO USE GIST MOBILE SOFTWARE NOR SERVICES TO DIAL ANY PHONE NUMBER INCLUDING EMERGENCY SERVICES.
9.2 IT IS YOUR RESPONSIBILITY TO MAINTAIN A CONVENTIONAL FIXED LINE TELEPHONY SUBSCRIPTION TO ASSURE THAT YOU HAVE CONTINUAL ACCESS TO EMERGENCY SERVICES.
10 Our rights – Intellectual Property
All rights, including copyright in Services and their content, belong to us, our network provider, or our licensed source, such as a content provider. We and they reserve all our and their rights.
11 Your Gist Mobile Account
11.1 We will charge you our fees for using some of our Services (the “Charges”). These Charges are specified in our price lists on the Gist Mobile website or in the Gist Mobile app or otherwise notified to you, when you use our Services (the “Price Lists”).
11.2 You undertake to be solely responsible for:
11.2.1 any and all charges incurred due to your use of any access number, local or otherwise;
11.2.2 any and all charges incurred by your use of any device in connection with the Gist Mobile Services or otherwise including, but not limited to, a cellular or mobile phone or tablet and
11.2.3 all billing transactions. Billing transactions include sign-up transactions (purchases at the time of sign-up) and purchase transactions (purchases which are made after sign-up). You may pay for all such transactions via a credit card and/or debit card and other payment methods as on the purchasing pages of our Website. You can also purchase credit from the iTunes website.
11.3 All purchases made in a currency other than US Dollars will be converted to US Dollars at an exchange rate to be determined by Gist Mobile.
11.4 SMS billing will be deducted from your Gist Mobile credit at the nominated rate per SMS. SMS are charged based on the size of your message. Message size is determined by the signalling protocol in use, which may vary depending on the input language. More information on message size can be found by contacting firstname.lastname@example.org.
11.5 You will be charged in 60 second blocks for any connected calls made using a Gist Mobile Service, unless we state otherwise in writing. Charges per call or SMS are rounded up to two decimal points of one US Dollar.
11.6 You are solely responsible for any roaming charges incurred as a result of using any services, including, but not limited to Gist Mobile Services, which you will be responsible to pay separately to your third-party suppliers. This is particularly relevant to some of our Services such as the Gist Mobile Call-back service. If you are, without limitation, downloading or updating a Gist Mobile Application or accessing Gist Mobile Services, you may be charged your standard mobile operator’s internet rates for the time you are connected to the internet through your mobile device. Please be aware that internet charges could be high particularly while you are roaming. You will be solely responsible for any mobile operator charges (e.g. internet charges incurred while roaming) or any other additional charges.
11.7 The credit in your Gist Mobile account will expire after a 12-month period unless you:
(a) top up your account with Service credit or
(b) you have an active Gist Mobile number which has made or received a call or voicemail or sent or received an SMS or
(c) you have made chargeable calls or sent chargeable SMS from your Gist Mobile number.
This means that the actual expiration date will always be 12 months from the date of the most recent successful recharge or use of the Gist Mobile service as described above.
11.8 You acknowledge and agree that:
11.8.1 ANY AND ALL TERMS HEREIN, INCLUDING WITHOUT LIMITATION, CALLING RATES OR PLANS, CAN BE CHANGED OR OTHERWISE MODIFIED BY GIST MOBILE AT ANY TIME IN ACCORDANCE WITH THESE TERMS AND CONDITIONS;
11.8.2 ALL SALES ARE FINAL. Unless otherwise stated in these Terms and Conditions, Gist Mobile will not issue a refund of any purchase except where required by law;
11.9 When using any available nongeographic numbers including “Freephone” numbers (if any), you will be charged in accordance with our Price List on our website. You acknowledge and agree that the rates applicable to these numbers may be higher than the rates applicable to geographic numbers.
11.10 Payments may be subjected to extra levels of verification before they can be captured by Gist Mobile. The aim is to protect customer accounts and security. This means that your payment can be slightly delayed before being processed by our payment moderation team. A notification will be sent to you once your payment has been processed and the funds added to your account.
12 Transfer credit to a friend
12.1 Subject to these Terms and Conditions and to Gist Mobile instructions, a Gist Mobile customer (the “Sender Gist Mobile Customer “) shall be entitled to transfer credit to another Gist Mobile customer (the “Recipient Gist Mobile Customer“) provided that:
12.1.1 The account of the Sender Gist Mobile Customer must have enough available credit balance;
12.1.2 The Sender Gist Mobile Customer can only transfer up to the total of the remaining balance in his/her Gist Mobile account;
12.1.3 The Recipient Gist Mobile Customer must be in the Sender Gist Mobile Customers contact list;
12.1.4 If the Sender Gist Mobile Customer account is put on hold for security reasons, the account of the Recipient Gist Mobile Customer will also be put on hold temporarily and the credits received will be unavailable to the Recipient Gist Mobile Customer until the account of Sender Gist Mobile Customer is re-activated;
12.1.5 The amount transferred to the Recipient Gist Mobile Customer is not refundable back to the Sender Gist Mobile Customer’s account by Gist Mobile;
12.1.6 The Sender Gist Mobile Customer cannot transfer promotional credit
12.1.7 The ‘Transfer Credit’ feature is only available from your Gist Mobile account online or as otherwise stated in writing by Gist Mobile
12.1.8 The Sender must make total payments to Gist Mobile exceeding $10 (or equivalent in local currency) before being allowed to transfer Gist Mobile credit to another Gist Mobile user.
13 Suspension or Termination of your Services
13.1 We may Suspend and/or Terminate any or all the Services you use without notice if:
(a) we reasonably believe you have provided us with false or misleading details about yourself as set out in Clause 8.4;
(b) we advise you that your excessive use of Services is causing problems for other users, and you are continuing to use Services excessively;
(c) we believe your Device has been lost or stolen;
(d) we reasonably believe that you have used Services or a phone number for illegal or improper purposes in contravention of our responsible use requirements in Clause 8 above;
(e) we receive a serious complaint against you which we believe to be genuine (for example, if we receive a complaint that you are using Services in any of the ways prohibited in Clauses 8.6 and 8.10);
(f) we are required to suspend your Services by the emergency services or other government authorities; or
(g) we reasonably believe you have permitted your Device to be unlocked via any unauthorised manner;
(h) if we believe you have in any way breached any terms of these Terms and Conditions, any relevant Gist Mobile End User License Agreement or any relevant third-party End User License Agreement or our privacy statement.
13.2 We may in our sole discretion report you to any local, state or federal authority, body or agency if you breach any of these Terms and Conditions, any relevant Gist Mobile End User License Agreement or our Privacy Statement. We may also, at our sole discretion cooperate with any affected third party by providing information and/or data in either civil or criminal proceedings.
14.1 All of our obligations to you relating to Services are set out in this agreement. If you wish to make any variations to this agreement or rely on any other term, you must obtain our agreement to the variation or term in writing.
14.2 To the maximum extent permitted by applicable law, Gist Mobile shall not be liable for cost of procurement of substitute goods and services or resulting from any Material, goods or services purchased or obtained or messages received or transactions entered into through or from the use of Gist Mobile Services or resulting from unauthorised access to or alteration of your transmissions or data, including but not limited to, damages for loss of profits, use, data or other intangible, even if Gist Mobile has been advised of the possibility of such damages. You further agree that, to the maximum extent permitted by applicable law, Gist Mobile shall not be liable for any damages arising from interruption, suspension or termination of Gist Mobile Services caused by third parties or for causes beyond Gist Mobile’s control, including but not limited to direct, indirect, incidental, special, consequential or exemplary damages, whether such interruption, suspension or termination was justified or not, negligent or intentional, inadvertent or advertent.
14.3 Except as set out in 14.4:
(a) other terms, conditions and warranties relating to Services are excluded;
(b) and our network provider’s entire liability to you for something we do or don’t do will be limited to £3,000 for one claim or a series of related claims; and
(c) we and our network provider are not liable for any loss of income, business or profits, or for any loss or corruption of data in connection with the use of Services. We and our network operator are not liable for any loss or damage that was not reasonably foreseeable when you entered into the agreement.
(d) we and our network provider are not liable for loss of the use of money or anticipated savings, loss of information, loss of opportunity, goodwill or reputation, cost of procurement of substitute goods or services or any indirect, special or consequential loss or damage of any kind howsoever arising and whether caused by tort (including negligence), breach of contract or otherwise or, whether any such losses could be reasonably foreseen by us or not or if even
if Gist Mobile has been advised of the possibility of such damages.
14.4 We are under no obligation to edit, review or modify the Material or any third-party content. However, we reserve the right to remove any Customer information or third party content at any time and without notice.
14.5 We exclude all liability of any kind in respect of:
14.5.1 the accuracy, completeness or suitability for any purpose of any Materials; and
14.5.2 the acts or omissions of other providers of telecommunications or Internet services or for faults in or failures of their equipment.
14.6 We disclaim, without limitation, all liability for identity theft or any other misuse of your identity or information.
14.7 You acknowledge that our directors, members of staff, sub-contractors, licensors and suppliers shall have the benefit of the limits and exclusions of liability set out in this clause, including in terms of the Contracts (Rights of Third Parties) Act 1999. Nothing in this Terms and Conditions shall exclude or limit liability for fraudulent misrepresentation.
14.8 To the maximum extent permitted by applicable law, Gist Mobile expressly disclaims any and/or all liability for inbound mobile phone roaming charges, mobile data charges and/or other like or unlike third party charges related to the use of any Gist Mobile service from a mobile phone, or any other device or computer while it is roaming or accessing a premium rate service.
14.9 Gist Mobile will not be liable to you in any way for failures, defects or delays in the provision of the Gist Mobile Service, or which are caused for any of the following reasons:
14.9.1 you have provided incorrect information when registering with Gist Mobile Services;
14.9.2 your mobile device is not able to receive the Gist Mobile Services; or
14.9.3 your mobile device is out of range or for some reason cannot be contacted
14.10 You are always under a duty to mitigate any losses suffered by you.
14.11 Because some states or jurisdictions do not allow the exclusion or the limitation of liability for consequential or incidental damages (including losses set out in Clause 16), in such States or jurisdictions, Gist Mobile (its licensors) or Gist Mobile affiliates’ liabilities shall be limited to the maximum state permitted by law. Gist Mobile does not endorse, warrant or guarantee any third-party product or service offered through Gist Mobile and will not be a party to or in any way be responsible for monitoring any transaction between you and third-party providers of products or services.
14.12 Nothing in this agreement removes or limits our liability for fraud, for death or personal injury caused by our negligence or for any liability which can’t be limited or excluded by applicable law. If you are a consumer, the terms of this agreement will not affect any of your statutory rights which you have, which cannot be excluded by this agreement. For more information on your statutory rights, contact your local authority Trading Standards Department or Citizen’s Advice Bureau.
Services – Area where we have no responsibility
14.13 We will try to ensure the accuracy, quality and timely delivery of Services. However:
(a) we and our network providers accept no responsibility for any use of, or reliance on, Services or their content, or for any disruptions to, or any failures or delays in, Services. This includes, without limitation, any alert Services or virus detection Services; and
(b) subject to Clause 8.3 we and our network providers do not make any representations as to the accuracy, comprehensiveness, completeness, quality, currency, error-free nature, compatibility, security or fitness for purpose of Services or their content. They are provided to you on an ‘as is’ basis; and
(c) we and our network providers are not providing you with advice of any kind (including without limitation investment or medical advice). Where Services contain investment information, we do not make invitations or offer inducements to enter into any investment agreements.
14.14 We and our network providers will not be liable:
(a) for any loss you may incur as a result of someone using your password, with, or without, your knowledge; or
(b) if we or they cannot carry out our duties, or provide Services, because of something beyond our control.
Others’ content and services – Areas where we have no responsibility.
14.15 You may be able to use Services:
(a) to upload, email or transmit content using Services; and
(b) to access content which is branded or provided by others and to acquire goods and services from others. Where we provide you with such access, all we do is transmit the content to you and we do not prepare or exercise control over the content, goods or services. We and our network providers are not responsible or liable in any way for, and do not endorse, any of this content, goods or services.
14.16 This Clause 14 will apply even after this agreement has ended.
15 Privacy Notice and Your Information
15.1 We may pass and share your personal information to our network provider, other communications service providers and network service providers for the detection and prevention of theft and fraud, and to carry out any activities or disclosures to comply with any regulatory, government or legal requirement.
15.2 If you use Services from a country outside the UK it may be necessary to transfer your information to that country. If that country is outside of the EEA, the treatment of your personal information may be subject to laws and regulations applying in that country and which may not protect your information to the same standards applying in the UK and the EEA.
15.3 You must keep any passwords or logins relating to your account and the Services safe and secure. You must not share them with anyone else. If you find or suspect that anyone else knows your passwords or login’s, or can guess them, you must contact us immediately and ask us to change them. This is your responsibility.
15.4 We may contact you before, during and after the Term in order to administer, evaluate, develop and maintain the Gist Mobile Services.
15.6 By registering for the Services you consent to us using and/or disclosing your personal information for the following purposes:
15.6.1 Processing your application (which, where applicable, may involve credit checking by a licensed credit reference agency who may record that a credit check has been made;
15.6.2 Providing or arranging for third parties to provide customer care/help desk facilities and billing you for the Gist Mobile Services (which may involve disclosing your information to third parties solely for those purposes);
15.6.3 To maintain quality and for training purposes, Gist Mobile may monitor and record telephone conversations with you;
15.6.4 To inform you about other Gist Mobile product or services unless you opted out to this during the application process or you notify our customer services in writing at email@example.com signifying that you do not wish to receive this information from us.
15.6.5 To disclose all or part of your personal data to a regulator (i.e. Ofcom, the Information Commissioner Office), a court, or to a public body to comply with any regulatory, government or legal requirement’; and
15.6.6 To communicate information that describes the habits or usage patterns and/or demographics of the whole or a part of Gist Mobile’s customer base (including you) but which is anonymous and does not describe or reveal the identity of any particular customer to any third party.
15.7 Where required Gist Mobile shall be entitled to make your name, address and telephone number available to the emergency services.
15.8 Gist Mobile will not sell your data to any third party.
16 Disclaimer of Warranties
The applicable laws in some jurisdictions may not allow the limitation or exclusion of liability in contracts with consumers and therefore all or part of Clauses 16 and 17 may not apply to you. For instance, if you are a consumer, the terms of these Terms and Conditions will not affect any of the statutory rights which you have, which cannot be excluded by these Terms and Conditions.
16.1 You affirm that use of Services is at your own risk.
16.2 Gist Mobile Services are provided on an “as is” and “AS AVAILABLE” basis.
16.3 To the maximum extent permitted by applicable law, Gist Mobile expressly disclaims all warranties of any kind, whether express or implied, including, but not limited to the implied warranties of merchantability, satisfactory quality, fitness for a particular purpose or ability to achieve a particular result and non-infringement. Gist Mobile makes no warranty that Gist Mobile Services will meet your requirements, that the Services will be uninterrupted, timely, secure, or error free; nor does Gist Mobile make any warranty as to the results that may be obtained from the use of Gist Mobile Services or as to the accuracy or reliability of any information obtained through the use of Gist Mobile Services or that defects in Gist Mobile Services will be corrected. Neither Gist Mobile nor any of Gist Mobile information providers imply any warranties concerning the accuracy, correctness or reliability of the messages received or requested via the use of Gist Mobile Services or any of the information, material, services or content contained therein (the “Material “).
16.4 In the absence of fraud, no oral or written information or advice given by Gist Mobile or its agents or licensees shall create a warranty or give rise to any other liability other than is given in these Terms and Conditions.
16.5 You affirm that we have no control over any Material and/or data downloaded or otherwise obtained through your use of Gist Mobile Services and that this content is used at your own discretion and risk. You acknowledge and agree that you will be solely responsible for any damage to your computer system or loss of data that results from the download of such Material and/or data.
16.6 Gist Mobile makes no warranty and does not guarantee the accuracy or completeness of, and to the maximum extent permitted by applicable law shall not be liable for, any Material displayed, purchased or obtained through or from Gist Mobile Services or any transaction entered into through the service. To the maximum extent permitted by applicable law, Gist Mobile shall not be liable for any delays, omissions or errors in the Material and shall not be liable for any reliance thereon. In the absence of fraud, no advice or information, whether oral or written, obtained by you from Gist Mobile, its members of staff, agents or sub-contractors or through or from the use of Gist Mobile Services shall create any warranty not expressly stated herein. You acknowledge that you will not rely on any Material when making any business decision (or when taking any other decision). You acknowledge and affirm that your use of the Material is at your sole risk.
16.7 You acknowledge that there may be additional conditions displayed online relating to particular Material, which you agree to accept before accessing the relevant Material.
17.1 You shall indemnify in full and hold Gist Mobile, its affiliates, subsidiaries, officers, agents, partners, employees and licensors harmless from and against:
17.1.1 any and all claims, actions and proceedings made or brought by any third party,
17.1.2 all liabilities, losses, costs, damages (including legal costs as part of a pre-litigation and settlement process or otherwise), and expenses incurred by Gist Mobile,
17.1.3 because of or arising out of your use of Gist Mobile Services, your connection to Gist Mobile Services, your breach of these Terms and Conditions, or your breach of any right of a third party.
18 Proprietary Rights
18.1 You acknowledge and agree that content, including but not limited to text, software, music, sound, photographs, graphics, video, or other Material of Gist Mobile Services or that is contained in sponsor advertisements or information presented to you through Gist Mobile Services or advertisers is protected by copyrights, trademarks, service marks, patents, or other proprietary rights and laws. You acknowledge and agree that you are permitted to use this Material only as expressly authorized by Gist Mobile or the respective advertisers, as applicable and may not copy, reproduce, transmit, distribute, or create derivative works of such content or information without express written authorization.
18.2 You expressly agree that all intellectual property rights in Gist Mobile Services, including but not limited to our Website, our Gist Mobile apps any and/or all underlying systems, support platforms, ideas, business models and/or any other like or unlike items associated with Gist Mobile shall inure to the sole benefit of Gist Mobile. You further agree that you shall not reverse engineer, decompile and/or otherwise attempt to learn the underlying ideas, algorithms and/or any other such proprietary ideas, concepts, content and/or property nor shall you cause or permit any other Party to do same.
Notifications sent to Customers
18.3 Any notice given to you by us shall be sent by post, via mobile messaging or electronic mail, through our Website or by displaying notices to you via Gist Mobile Services. This may include a notification on your Gist Mobile account dashboard or a general notification on our Website.
18.4 You must send notices to us by post or personal service or email sent to:
POSTAL ADDRESS: 71-75 Shelton Street, London, Greater London, United Kingdom, WC2H 9JQ
EMAIL ADDRESS: firstname.lastname@example.org
We make every effort to ensure that our customers are happy with the level of service they receive from us. However, despite our best efforts, things can go wrong. We take customer complaints very seriously and aim to resolve them quickly and efficiently. If you have a complaint about any part of our service, please contact our customer service team at email@example.com or refer to our complaints code of practice posted on the Gist Mobile website. You can also request a copy from our customer service team.
20 Modification of these Terms and Conditions.
20.1 In the event that any variation Gist Mobile makes to these Terms and Conditions is to your material detriment, Gist Mobile will give you at least 30 days’ notice in accordance with Clause 19. The change will not take effect until the end of the 30-day notice period. You may, within 14 days of our notice, give Gist Mobile not less than 14 days’ notice that if the amendment is not withdrawn you will terminate these Terms and Conditions. In order to ensure continuity, time will be of the essence for your notice to be received by us and if we have not received your notice within that time, you will be bound by the terms of these Terms and Conditions as varied.
20.2 Subject to the Clause 20.1 above, we shall be entitled to notify you of any updates and/or variations of the terms of these Terms and Conditions and our charges, by email, through a notice on Gist Mobile invoices or by posting our updated Terms and Conditions on our Website.
21 Other terms
21.1 This agreement is governed by English law unless you live in Scotland in which case, it will be governed by Scots Law. Each of us agrees to only bring legal actions about this agreement in a UK court.
21.2 If you, or we or our network provider, delay, or do not take action to enforce our respective rights under this agreement, this does not stop you, or us or them, from taking action later.
21.3 If any of the terms in this agreement are not valid or legally enforceable, the other terms will not be affected. We may replace any item that is not legally effective with a similar term that is.
21.4 We may assign or transfer our rights and obligations under your agreement to a party who agrees to continue complying with our obligations under this agreement, provided that your rights under the agreement or any guarantees given by us to you are not affected. No other person (other than our assignee, if any) may benefit from this agreement.
21.5 In exceptional circumstances, a government authority may order the reallocation or change of phone numbers, in which case we may have to change your phone number for Services.
21.6 You confirm that you have full contractual capacity to agree to the agreement.
Third Party Rights.
21.7 This agreement is entered into by us for the benefit of us and our network provider.
21.8 For the purposes of the Contracts (Rights of Third Parties) Act 1999 it is intended that our network provider will have the right to enforce any rights conferred on it under this agreement and to that extent our network provider will have the same rights against you as would be available if they were a party to this agreement.
Glossary for Terms of Services
Additional Services: additional or supplemental services for which a charge is made in addition to the fixed periodic charges for the Services (if applicable).
Age Restricted Services: any Services for use only by customers 18 or over.
Cancellation Fee: means, a fee charged if we end the agreement due to your conduct or if you end your agreement within the Minimum Term. This fee may cover (without limitation) your fixed periodic Charges for the Minimum Term, our administrative costs, costs incurred by us in Connecting and Disconnecting the Services and our payments to operators, network providers, stores or agents.
Charges: charges for access to, and use of, Services. These charges may cover (without limitation) fixed periodic charges, usage charges, account administration fees, fees for Connection and re-Connection, a Cancellation Fee (where applicable) and any costs incurred in collecting outstanding payments from you.
Connection: the procedure by which we give you access to Services. ‘Connected’, ‘Connecting’, and ‘re-Connection’ have corresponding meanings.
Damage: any accidental, sudden and unforeseen damage to the Device caused by external means which affects the operational functioning of the Device.
Disconnection: the procedure by which we stop your access to Services. ‘Disconnected’ and ‘Disconnecting’ have corresponding meanings.
Device: the device or mobile device that is authorised by us for Connection to the network which is used to access Services.
Event: A Gist Mobile number does any of the following – makes or receives an answered call, receives a voicemail, or sends or receives an SMS.
Expire (Gist Mobile number): when a Gist Mobile number is removed from an account and cannot be used any more.
Messaging Services: any email, fax and voicemail Services, text message and multimedia messaging Services, personal information management and other message or communication facilities which let you communicate with others.
MSISDN: the number used for routing calls or SMS to a subscriber.
Network Provider: our third-party Gist Mobile Number supplier(s).
Peer to Peer: “calls” or “messages” sent over a live Wi-Fi or mobile data internet connection from one Gist Mobile user to another, providing they are both logged into their accounts.
Premium Services: any Services which are charged at premium rates – such as international roaming.
Services: any of the following services we offer you, including call services, Messaging Services, Storage Services, Age Restricted Services and Premium Services, which we agree to provide for you.
Storage Services: any Services which offer you storage capacity on the network for storage of content which you access from us.
Suspension: the procedure by which we temporarily Disconnect your access to the Services. ‘Suspend’ has a corresponding meaning.
Third Party Supplier(s): any supplier who is offering any product, service, store, website, software and/or other technology owned and controlled by third parties which may incorporated into, accessible through or used to access the Gist Mobile Service or into which the Gist Mobile service may be incorporated.
Gist Mobile Application: application program interface consisting of the sets of routines utilized by the Gist Mobile Services to provide the functionality of a given platform or operating system, the Gist Mobile Application being included in or linked to the Gist Mobile Services.
Gist Mobile Number: a MSISDN or DDI (direct dial in) number which supports calls and SMS which is not tethered to a SIM card.
Gist Mobile SIM Number: the SIM phone number of your phone. This number must be the username of your Gist Mobile account.
Gist Mobile Service: the facilities and the products provided by Gist Mobile under this Agreement including without limitation the software distributed by Gist Mobile for internet and/or mobile communications, the Gist Mobile Paid Services, the Gist Mobile Application, user interface and Documentation as well as any future programming fixes, updates and upgrades.