Terms and Conditions

1. Introduction

Please read these Terms of Service (“Agreement”) carefully: they govern our relationship with you regarding your use of the MPme application (“the MPme Application”) and contain important information about your rights and obligations. By accessing, downloading or using the MPme Application (including any upgrades), you agree to be bound by this Agreement and as may be modified from time to time. You can view the most recent version of this Agreement at www.mpme.com/terms

If you do not want to be bound by this Agreement, you must not access, download or use the MPme Application.

This Agreement and our Privacy Policy at www.mpme.com/privacy sets out the terms and conditions under which Apsmart Limited (“Apsmart”, “we”, “us” and “our” as appropriate) of 21a Noel Street, London W1F 8GR agrees to license to you the MPme Application. In this Agreement, “you” and “your” means the individual end user accessing the MPme Application. Full details of the MPme Application are available at www.mpme.com.

2. Changes to this Agreement

We may change this Agreement from time to time and post the new version on www.mpme.com/terms following which all use of the MPme Application will be governed by the revised version. You must check the terms of this Agreement accessible from the website from time to time to review them. We shall update the “Last modified” date in the event of a change to this Agreement. Your continued use of the MPme Application following any modification of this Agreement indicates your acceptance of the new terms. In the event that you are not happy with any changes, do not continue to use the MPme Application.

3. Payment and Right to Cancel

Payment amounts and terms which may be applicable will be provided to you before you complete payment for the download of the MPme Application. Payment for the MPme Application will include any applicable VAT. You have the right to cancel this Agreement within seven working days of purchase upon notification in writing or other durable medium (including email) within those seven working days. You will then be entitled to a refund which will be paid as soon as possible, but in any event within 30 days. You will not have the right to cancel this Agreement once you have begun to use the MPme Application.

4. Mobile Network Operator Charges

Because some mobile network operators may impose additional fees or other charges in connection with your use of the MPme Application, you must prior to downloading and using the MPme Application ensure that you are familiar with and fully understand your mobile operator’s standard charges, data rates and any other charges that might apply.

5. Registration

All information provided by you during the registration or ordering process (including but not limited to your billing details) shall be true, accurate, current and complete and will be relied upon by us for the provision of the MPme Application. You are responsible for updating your account information should any changes occur. You are responsible for the security of your account and for all activities that occur in connection with your account including use of the MPme Application by you or others. Any breach of security (for example, in connection with your username or password) must be notified to us immediately. If you provide any information that is false, untrue, inaccurate, not current or incomplete, or we have reasonable grounds to suspect that such information is false, untrue, inaccurate, not current or incomplete, we shall have the right to suspend or terminate your account and refuse any and all current or future use of the MPme Application. Personal data submitted by you in the registration process and certain other information about you is subject to our Privacy Policy. By using the MPme Application you agree to the terms of our Privacy Policy. For more information, please see our Privacy Policy at www.mpme.com/privacy.

6. Children

To use the MPme Application you must be at least 18 years old. Children over the age of 13 years may use the MPme Application only with the permission of their parent, guardian or the person who is responsible for paying the mobile phone bill (if different and aged 18 years or over) and such parent, guardian or other person accepts full responsibility for the child’s activities when using the MPme Application.

7. Personal Use

The MPme Application is provided for your personal non-commercial use only. You may only use the MPme Application on the single device or item of telecommunications equipment on which it was initially installed.

8. Changes to the MPme Application

We may add, change, remove or discontinue any aspect of the MPme Application at any time. In the unlikely event that we make any changes which are materially detrimental to you, you may terminate this Agreement with us on written notice and you may be entitled to a refund of any unused subscription amount that you have prepaid representing the period following the termination date.

9. Ownership

The copyright, trade secrets, trade marks and any other intellectual property rights including all related software and underlying source code which subsist in the MPme Application and all copies thereof is owned by us or our licensors. Title to and ownership of the MPme Application shall at all times remain vested in us. You accept that the MPme Application contains confidential information that is our property or the property of our licensors and that it is protected by applicable intellectual property and other laws and copyright. You also agree and acknowledge we own the intellectual property rights to any modifications of the MPme Application. Use of the MPme Application requires compatible devices, Internet access, and certain software. You may need to download and use third party software (“Third Party Software”) to make full use of, and to access, all features of the MPme Application. Any such Third Party Software that is required to be downloaded in connection with the MPme Application is protected by copyright and intellectual property rights belonging to the owner and licensor of the Third Party Software. You will be advised of any requirement to download Third Party Software on our website www.mpme.com/terms/credits. “mpme” and “Apsmart” (“the Apsmart Trade Marks”) are owned by us and no right or license is granted to the Apsmart Trade Marks.

10. License and Use

10.1 Subject to the terms and conditions of this Agreement, we hereby grant to you a limited, non-exclusive, revocable, personal, non-transferable license to use the MPme Application without any right to sub-license. You will not sell, sub-license, lease, rent, loan, lend, transfer, assign, transmit or otherwise distribute or transfer the MPme Application in any manner to third parties.

10.2 The license granted hereunder is limited to use of the MPme Application on the device that you own or control. You will not use the MPme Application on any device that is not owned by you or under your control and you will not distribute or make the MPme Application available over a network where it could be used by multiple devices at the same time.

10.3 You undertake not to (and will not permit or assist any third party to) reverse engineer, decompile, disassemble, or attempt to derive the source code of the MPme Application or any updates thereof and you will not adapt, alter, modify, upgrade, enhance or create derivative works of the MPme Application or any updates thereof.

10.4 You will not (and will not permit or assist any third party to) reproduce or copy any part of the MPme Application or our website. The MPme Application is provided to you for your own personal use only and you will not re-sell or in any way re-supply the MPme Application to others.

10.5 The terms of this Agreement will govern any upgrades provided by us unless such upgrade is expressly stated to be subject to a separate license agreement.

10.6 You agree to use the MPme Application strictly in accordance with this Agreement and any instructions issued by us from time to time. You agree not to not use the MPme Application in contravention of any applicable local, state, national or international law, regulation or code of practice. We have no responsibility to ensure the MPme Application complies with applicable laws and regulations within any territory where you choose to use the MPme Application. You are responsible for compliance with the laws of any country where the MPme Application may be used. Such compliance is your sole responsibility and risk. You must not use the MPme Application where prohibited by law. You agree that the MPme Application is available only to persons who can form legally binding contracts under the laws of the particular country in which the MPme Application is being provided. You warrant and represent that you have the necessary rights to download and use the MPme Application.

11. Third Party Programmes, Applications and Websites

11.1 The MPme Application enables you to search for, obtain information, access, view and listen to radio programmes, third party applications and websites over which we have no editorial or programming control. We have no responsibility to you or any other party for third party content accessed through the MPme Application. We do not host and are not responsible for content accessed via the MPme Application. We do not guarantee the access to any particular third party content or the accuracy of such content. Third party content accessed via the MPme Application is not under our control and is not endorsed by us. We are not responsible or liable to you for such third party content or its distribution.

11.2 When accessing third party content via the MPme Application, you acknowledge that the copyright is owned by the party that supplied it and is protected by national and international copyright laws and may not be copied, modified, reproduced, distributed, made into derivative works, broadcast, re-sold or in any way re-supplied, sub-licensed or publicly performed or displayed without the prior permission of the copyright owner.

11.3 Where you have dealings with third parties accessed via the MPme Application this is your responsibility and we exclude all liability for any claims, charges, expenses, losses, or damages suffered by you arising from your dealings with third parties. We do not represent or warrant that any third party application, product, service, material, information or content (collectively “Third Party Material”) that may be obtained through the MPme Application is accurate, complete or current. You understand that by using the MPme Application you may be exposed to Third Party Material that is offensive, indecent or objectionable. We shall not be responsible for or liable for Third Party Material, including, but not limited to, any errors or omissions in Third Party Material, or any loss or damage of any kind incurred as a result of the use of, or reliance on, Third Party Material downloaded, uploaded, posted, emailed, transmitted or otherwise accessed via the MPme Application. Third Party Material accessed via the MPme Application is outside our control and will be subject to third party intellectual property rights, separate terms of use and policies covering data use and privacy. You are advised to read applicable terms and policies carefully before accessing such Third Party Material.

12. User Content and Prohibited Use 

12.1 You are solely responsible for all information, messages, data, text, reviews or other material and content that you generate, upload, post, or otherwise provide in connection with the MPme Application (“User Content”). You, and not Apsmart, are responsible for all User Content. We are not responsible for the accuracy, integrity or quality of User Content. We shall not be responsible for or liable for any User Content, including, but not limited to, any errors or omissions in any User Content, or any loss or damage of any kind incurred as a result of User Content being uploaded, posted, emailed, transmitted or otherwise made available via the MPme Application.

12.2 You may use the MPme Application for lawful purposes only and in accordance with such instructions as we may notify to you from time to time. You are responsible for all activity and usage of the MPme Application and for any breaches of this Agreement that may result. You must ensure that the MPme Application is not used, whether by you or by anyone else, for any unlawful or fraudulent purposes. You may not use the MPme Application:

(a) in any way that breaches any applicable local, national or international law or regulation;

(b) to send, knowingly receive, upload, download, use or re-use any material which does not comply with the requirements set out in clause 12.4 below;

(d) to knowingly transmit any data, or send or upload any material that contains viruses, Trojan horses, worms, keystroke loggers, spyware, adware or any other harmful programs or similar computer code designed to adversely affect the operation of any computer or telecommunications equipment software or hardware;

(e) in any way which we reasonably consider to be abusive or inappropriate; or

(f) in any way which we reasonably consider is likely to affect the quality and integrity of the MPme Application or any other product or service provided by us.

12.3 You agree that you shall not attempt to interfere with the proper working of the MPme Application and, in particular, you must not attempt to circumvent security, tamper with, hack into, or otherwise disrupt any part of the MPme Application or any device, telecommunications equipment, computer system, server, access point or any other Internet connected device relating to the MPme Application.

12.4 You must not use the MPme Application to download, upload, post, transmit, view, use or otherwise make available any material which is defamatory or libellous; obscene, offensive, hateful, inflammatory or otherwise criminal in nature; contains sexually explicit material; promotes violence; promotes discrimination based on race, sex, religion, nationality, disability, sexual orientation or age; infringes any copyright, database right, trade mark or other intellectual property right of any person; is made in breach of any legal duty owed to a third party, such as a contractual duty or a duty of confidence; is threatening, abusive or invades any person’s privacy; is likely to harass, upset or alarm any other person; is used to impersonate any person, or to misrepresent your identity or affiliation with any person; gives the impression that they emanate from us, if that is not the case; or advocates, promotes or assists any unlawful act such as (without limitation) copyright infringement or computer misuse.

12.5 You acknowledge that we have the right (but not the obligation) in our sole discretion to monitor, pre-screen, refuse, take down or move any User Content that is available via the MPme Application. Without limiting the foregoing, we have the right to monitor and remove any User Content that we consider to be in violation of this Agreement or otherwise objectionable but we are not responsible for any failure or delay in the removal of User Content of this type. We have no responsibility or liability for User Content. User Content comprising music is not permitted unless authorised by us in advance in writing. You are responsible for any payments that may be due to any third party arising from you posting User Content in connection with the MPme Application.

12.6 We do not claim ownership of User Content you submit or make available via the MPme Application. With respect to User Content you submit or make available, you grant to us a worldwide, irrevocable, perpetual, royalty-free and non-exclusive license (together with the right to grant and authorise sublicenses) to use, distribute, reproduce, modify, adapt, prepare derivative works from, incorporate into other works, distribute, publicly perform and publicly display such User Content in any medium.

12.7 You shall indemnify and keep us, our affiliates, agents, partners and officers, fully and effectively indemnified on demand from and against all actions, claims, losses, liability, damages, costs and expenses (including legal costs and expenses) suffered or incurred by us and arising directly or indirectly out of User Content you submit, download, upload, post, transmit or otherwise make available through the MPme Application, your use of the MPme Application, your violation of this Agreement, or your violation of any rights of another.

13. Advertising

We may display advertising to you when you use the MPme Application. Any dealings between you and advertisers are your responsibility and we exclude all liability for any claims, charges, expenses, losses, or damages suffered by you arising from your dealings with advertisers.

14. Location Based Data

We may collect your location data on an anonymised and aggregated basis to help improve the performance of the MPme Application. Your location data may also be made available to third parties such as radio broadcasters, websites, application providers and content owners and providers on an anonymised and aggregated basis to assist such third parties to provide and improve their products and services. By downloading the MPme Application you consent to such anonymised and aggregated use of your location data. We may disclose location data to third party application providers should you choose to use their location services.

15. Liability

15.1 We shall use reasonable endeavours to provide the MPme Application with reasonable skill and care, within a reasonable time and substantially as described in this Agreement. We do not warrant that the provision of the MPme Application will be fault free or uninterrupted but shall use reasonable skill and care to provide and maintain the MPme Application. Any faults should be reported to us at mpme@apsmart.mobi. We may remove or suspend use of the MPme Application or terminate this Agreement at any time for technical, maintenance or operational reasons without liability to you. We do not make any other promises or warranties about the MPme Application. The licensor of any Third Party Software or third party application used in connection with the MPme Application will be solely responsible for providing maintenance and support services with respect to such Third Party Software or third party application. If you choose to use or access any Third Party Software or third party application, you are responsible and liable for compliance with any applicable laws in relation to such usage. We may suspend or remove access to any Third Party Software or third party application at any time without notice. In no event shall we be liable to you for the suspension or removal of such Third Party Software or third party applications.

15.2 The MPme Application is provided “as is” and “as available”. We do not provide any guarantee or assurance that the MPme Application will operate continuously or without interruptions or be error free or meet your requirements or that defects in the MPme Application will be corrected. We do not warrant that the MPme Application will be free from any security intrusion including but not limited to loss, corruption, attack, viruses, interference or hacking. Accordingly, we do not accept liability for unavailability or the timeliness, deletion, mis-delivery or failure of the MPme Application. You assume full responsibility and sole risk for your use of the MPme Application. To the maximum extent possible, no warranties or terms implied by applicable law, including without limitation those relating to satisfactory quality, merchantability, performance, fitness for purpose, quiet enjoyment and non-infringement of third party rights shall apply to the subject matter of this Agreement. In entering into this Agreement, each party acknowledges that it does not do so on the basis of, and does not rely on any representation, warranty, condition or other provision except as expressly provided in this Agreement and we exclude all express or implied terms, conditions, warranties, representations or endorsements whatsoever with regard to the MPme Application to the fullest extent permitted by law. We are not responsible for operation of the MPme Application other than on hardware agreed by us and in conjunction with the operating environment designated for the MPme Application. The limitations and exclusions in this clause do not affect your non-excludable statutory rights and only apply to the extent permitted by applicable law.

15.3 We do not provide any guarantee or assurance that Third Party Software or third party applications used in connection with the MPme Application will operate continuously or without interruptions or be error free or meet your requirements. Nor do we warrant that any Third Party Software or third party application will be free from any security intrusion including but not limited to loss, corruption, attack, viruses, interference or hacking.

15.4 Nothing in this Agreement shall exclude or restrict the liability of either party for (i) death or personal injury resulting from either party’s negligence, (ii) liability for fraud, or (iii) any other liability which cannot be limited or excluded under applicable law. To the extent permitted by applicable law, we shall not be liable to you or any third party in contract, tort or otherwise (including liability for negligence or breach of statutory duty) for any loss of revenue, business, anticipated savings, profits (whether or not in each case they are considered to be direct or indirect losses), corruption or destruction of data, any loss arising from use of Third Party Software, third party applications, Third Party Material or User Content, or for any indirect or consequential loss howsoever arising or in any way related to the use or inability to use the MPme Application or otherwise under or in connection with this Agreement even if we are expressly advised of the possibility of such damage or loss. Our aggregate liability to you arising out of or in connection with your use of the MPme Application shall not exceed £20.00 (GB Pounds Sterling). The limitations and exclusions in this clause do not affect your non-excludable statutory rights and only apply to the extent permitted by applicable law.

16. Termination

This Agreement remains in full force and effect until terminated by you or us. You may terminate this Agreement at any time by contacting us at mpme@apsmart.mobi. We shall have the right to immediately suspend or terminate this Agreement with or without notice if you breach (or we have reasonable grounds to believe you have breached) any provision in this Agreement or for any other reason. If we terminate this Agreement without cause we shall refund any unused subscription amount that you have prepaid representing the period following the termination date. On termination for any reason whatsoever you will remain liable for any amounts due to us up to the date of termination and you shall no longer have any right to use or access nor permit access to or use of the MPme Application.

17. General Provisions

17.1 You may not assign or transfer this Agreement without our prior written consent. We may assign, transfer, novate or subcontract any or all of our rights and obligations under this Agreement at any time.

17.2 This Agreement together with our Privacy Policy is the whole agreement between you and Apsmart. You acknowledge that you have not entered into this arrangement in reliance upon any statement, warranty or representation made by us or any other person except those expressly set out in this Agreement. You also may be subject to additional terms and conditions when you use Third Party Software and other third party applications in connection with the MPme Application.

17.3 If any provision of this Agreement shall become or be declared illegal, invalid or unenforceable for any reason whatsoever, such provision shall be divisible from the others and shall be deemed deleted.

17.4 We shall not be liable for any failure to perform any obligation to the extent such failure is due to causes beyond our reasonable control such as acts or omissions of other communications providers or broadcasters, other application providers, compliance with any law or court order, acts or omissions of local or central government or other competent authorities.

17.5 All notices shall be given:

(a) to us via email at mpme@apsmart.mobi or by post to such email or postal address as may be notified to you from time to time via the contact section of our web site at www.mpme.com; or

(b) to you by SMS to the mobile number you provided during the registration or ordering process or the email or postal address you provided during the registration or ordering process.

Notices will be deemed received when an SMS or email is received in full (or on the next business day if it is received on a weekend or a public holiday in the place of receipt) or 3 days after the date of posting.

17.6 The termination of this Agreement however arising shall not operate to affect such of the provisions of this Agreement as are expressed to operate or have effect after then and shall be without prejudice to any accrued rights or remedies of the parties.

17.7 Failure by either party to exercise or enforce any right conferred by this Agreement shall not be deemed to be a waiver of any such right nor operate so as to bar the exercise or enforcement thereof or of any other right on any later occasion.

17.8 This Agreement shall be governed by English law and the parties hereby submit to the exclusive jurisdiction of the English courts except that we shall be entitled to take any action we consider necessary to protect or preserve any of our copyright, confidential information, trade secrets, trade marks and any other intellectual property rights in any court of competent jurisdiction.

17.9 A person who is not a party to this Agreement has no right under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of this Agreement but this does not affect any right or remedy of a third party which exists or is available apart from that Act except that if you are using a device or application supplied by Apple, Inc. (“Apple”) the following shall apply:

(a) You acknowledge and agree that Apple and its affiliates are third-party beneficiaries of this Agreement. You also agree that Apple and its affiliates will have the right (and will be deemed to have accepted the right) to enforce this Agreement against you as a third-party beneficiary thereof;

(b) you acknowledge and agree that we, and not Apple, are responsible for dealing with any claims you or any third party may have in connection with the MPme Application; and

(c) you acknowledge and agree that Apple has no obligation to provide any maintenance or support services in connection with the MPme Application.

Last modified date: 12th January 2012