Agreement between White Boomerang Limited and You (Updated 15th December 2013)
1.1.The Secure Communication Services and any Additional Services (the “Services”) under this Agreement are provided by White Boomerang Limited. In this Agreement, “White Boomerang”, “We”, “Us”, or “Our” means White Boomerang Limited and “User”, “You”, and “Your” means you; the user of Our Services as an “Owner” or “Finder”. White Boomerang Limited is a limited company incorporated in England and Wales under company number 08653686 whose registered office is at 2nd Floor, 167-169 Great Portland Street, London W1W 5PF.
"Account" includes the Guest Account and the Registered Account;
"Account Registration" means Your account registration with Us as set out in clause 2 of this Agreement;
"Additional Services" means Our Item Registration Services and Our Reward Transfer Services as well as any other chargeable services which may be provided by Us in future subject to the terms of this Agreement;
"Agreement" means these terms and conditions;
"Charges" means the charges payable by You for using Our Services, priced in accordance with the Price List or as notified to you at any given time;
"Commencement Date" means the start day of the chargeable Services as set out in clause 4.2 of this Agreement;
"Data" includes personal information, text, photography, messages, and other material of any kind in any form relevant for the purposes of this Agreement;
"Finder" means the person who finds lost property (possibly registered with White Boomerang);
"Group Company" means any holding company of a company or any subsidiary of such company;
"Guest Account" means the use of Our Secure Communications Services without an actual registration, providing Us only with a contact email address;
"ID Tag" means the unique registration number in form of XXXX-XXXX provided by Us used in place of the Owner’s personal identification information;
"Intellectual Property Rights" means patents, rights to inventions, works of authorship, copyright and related rights, trade marks, business names and domain names, rights in get-up, goodwill and the right to sue for passing off, rights in designs, database rights, rights to use, and protect the confidentiality of, confidential information (including know-how), and all other intellectual property rights, in each case whether registered or unregistered and including all applications and rights to apply for and be granted, renewals or extensions of, and rights to claim priority from, such rights and all similar or equivalent rights or forms of protection which subsist or will subsist now or in the future in any part of the world;
"Item Recovery" means the return of the lost item to the Owner;
"Item Registration Services" means Our services provided to the Owner that he/she can register his/her personal property with Us subject to the terms of this Agreement;
"Order" means the online application form submitted by You and accepted by Us to order any of Our Services subject to the terms of this Agreement;
"Owner" means the person who lost his/her property;
"Party" means White Boomerang and You;
"Price List" means information relating to Our Charges available on Our Website or on request from Us, as may be amended by Us from time to time;
"Registered Account" means Your registration to our Services as described in clause 2.2;
"Registered Item" means any item registered using Our Item Registration Services;
"Report Link" means the link You can use to report something that you have seen on Our Website that You believe may violate Our terms and conditions;
"Reward" means an optional gratification offered by the Owner for finding his/her lost item;
"Reward Partner" means any voucher supplier or charity selected in advance by White Boomerang;
"Reward Notification" means the notification as set out in clause 3.6;
"Reward Partner List" means the list of Our Reward Partners available on Our Website or on request from Us, as may be amended by Us from time to time;
"Reward Transfer Services" means Our chargeable Reward services as described in clause 3.3 of this Agreement;
"Secure Communication Services" means the provision of the communication platform as described in clause 3.1 of this Agreement;
"Services" means the Secure Communication Services and any Additional Services provided by Us subject to the terms of this Agreement;
"Thank You Site" means the webpage for the Reward Transfer Services accessible through Our Website;
"Verification Form" means Our form asking You for additional information to verify Your identity available on Our Website or on request from Us, as may be amended by Us from time to time; and
"Website" means www.whiteboomerang.com or such other address as is notified to You from time to time.
1.3.1.In this Agreement (except where the context otherwise requires):
18.104.22.168.The Clause headings are included for convenience only and shall not affect the interpretation of this Agreement;
22.214.171.124.Use of the singular includes the plural and vice versa;
126.96.36.199.Use of any gender includes the other genders;
188.8.131.52.Any reference to "persons" includes natural persons, firms, partnerships, companies, corporations, associations, organisations, governments, states, foundations and trusts (in each case whether or not having separate legal personality);
184.108.40.206.Any reference to a Party or to the Parties or their respective affiliates shall be deemed to include the party or parties hereto and their respective successors and permitted assigns and their respective employees;
220.127.116.11.Any reference to an enactment, statute, statutory provision or subordinate legislation ("legislation") shall (except where the context otherwise requires) be construed as referring to such legislation as amended and in force from time to time and to any legislation which re-enacts or consolidates (with or without modification) any such legislation;
1.3.2.Where in the Agreement You agree not to do any act or thing You also agree not to allow (including without limitation, taking all reasonable preventative measures) any other person to do that act or thing.
2.1.This Agreement shall commence on the date We accept
2.1.1.Your Use of Our Services using a Guest Account; or
2.1.2.Your Account Registration;
by sending You an email confirmation asking you to click in a link to confirm Your new Account. We reserve the right to cancel Your Account if you do not click in the link to confirm your Account within five (5) days after registration.
2.2.When registering a Registered Account, you are required to provide Us with certain personal information such as Your name and an email address and to select a unique username and/or password (collectively referred to hereunder as “Sign In Information”).
2.3.You are responsible for maintaining the confidentiality of the Sign In Information, and, provided that You act negligently or willfully You will be responsible for all uses of the Sign In Information whether or not authorised by You.
2.4.Minors (under 18) may not register and/or use an Account with Us, unless the Account is established by their parents or legal guardian and the minors use the Account with the approval of their parent or legal guardian. In Your capacity as a parent or legal guardian, in the event that You provide Your approval to allow a minor to use an Account, You hereby agree to the terms of this Agreement on behalf of Yourself and the minor, and you represent and warrant that You will be responsible for all uses of the Account by the minor whether or not such uses were authorised by You.
2.5.In the event You become aware of or reasonably suspect any breach of security, including without limitation any loss, theft, or unauthorised disclosure or use of the Sign In Information, You must immediately notify White Boomerang through Our web contact form at www.whiteboomerang.com. We reserve the right to change the password without notice and if We have reason to believe You are in breach of this clause 2.5 to invalidate such password and/or to suspend the Services.
3.Services / Ordering of Additional Services
Secure Communication Services
3.1.Owners and Finders of lost items can use Our messaging board to communicate sending and receiving anonymised messages through Our Website and upload photographs of lost/found items.
Item Registration Services
3.2.Any Owner with an Registered Account may register his/her personal property with Us labeling his/her items with Our unique ID Tag generated in advance using the “Tag it!” button on Our Website.
Reward Transfer Services
3.3.On Item Recovery, Owners may discretionally reward Finders for their efforts using the Reward Transfer Services on Our Thank You Site offering a Reward of up to £250.00.
3.4.On receipt of the Reward sent by the Owner to Us (plus Reward Transfer Services Charges), We will send an email to the Finder informing him/her that the Owner has promised a Reward which is retrievable from Our Website (accessible through a secure link included in the email) (the “Reward Notification”).
3.5.The Finder then may choose to receive shopping vouchers from a Reward Partner or to donate the whole Reward to a selected charity form the Reward Partner List. We will then arrange for the transfer of vouchers and/or monies.
3.6.The Reward will be redeemable for 12 months from the date of Reward Notification.
3.7.If not redeemed on time, the Reward shall be payable in equal parts to the charities listed on the Reward Partner List.
3.8.The Reward Transfer Services shall be deemed to have been completed on the working day on which the Reward Notification is first stored in the Finder’s electronic mail-box.
4.1.The Secure Communication Services shall commence on the commencement date of this Agreement as set out in clause 2.1.
4.2.Any Additional Services shall commence on the date We accept Your respective Order to use any or all of Our Additional Services (the “Commencement Date”).
5.1.The Secure Communication Service shall continue unless and until either Party terminates the Account pursuant to the provisions of this Agreement.
5.2.The Additional Services shall end after completion.
6.1.Subject to the terms of this Agreement, We will:
6.1.1.provide a secure anonymous communication platform (the Website);
6.1.2.maintain a confidential database with Your contact information (the account details) and any unique ID Tags allocated to your property;
6.1.3.provide, always subject to Our acceptance of Your Order, the Additional Services; and
6.1.4.grant to You a limited, revocable, non-transferable, non-sublicensable and non-exclusive licence to use Our Services solely for Your own non-commercial use. You may not use the Services for any other purpose.
6.2.We shall use reasonable care and skill in providing the Services. However, You accept that:
6.2.1.We will not monitor the communication content on Our website;
6.2.2.We cannot guarantee that Your report of something that you have seen on Our Website that You believe may violate Our terms and conditions will ultimately lead Us to remove it from Our Website. However, we do guarantee that all Your reports are investigated thoroughly and that in the case of criminal offences we will contact the competent authorities. Please be aware that for privacy reasons We will not share the results of Our investigations with You;
6.2.3.We also cannot guarantee that any Data generated, stored, transmitted or used via or in connection with the Services will be complete, accurate, secure, up to date, received or delivered correctly or at all;
6.2.4.We will not verify that a person claiming he/she found the lost item is really the Finder of the lost item. It is the Owner’s responsibility to verify this. We shall under no circumstances whatsoever be liable for any use of our Services in breach of this Agreement.
6.2.5.We will take no responsibility for the Item Recovery. The return of the lost item shall be in complete responsibility of the Owner and Finder;
6.2.6.We cannot guarantee that if a Registered Item is lost or misplaced it will be located and returned.
6.2.7.We cannot guarantee that You will receive Our Reward Notification but We will make every attempt to contact You, using the contact information stored in Our database. We will initially use any email addresses or phone numbers to arrange a contact.
6.2.8.If an Owner and a Finder conclude contractual agreements through Our Website (e.g. regarding an reward payable for the return of the lost item), We are not a Party to this agreement and cannot accept any liability for a possible breach of contract;
6.2.9.The Services are provided by Us using broadband telephony and therefore may sometimes be unavailable for causes outside our control, such as failure of Your broadband connection or internet service provider, power disruptions, the weather, force majeure etc. The Services may also not be available due to suspension of the Services by Us in accordance with this Agreement.
7.1.You must supply Us with all information reasonably required to supply the Services. You will update that information promptly after it changes.
7.2.To provide secure anonymous communication and prevent fraud and criminal offence:
7.2.1.Owners and Finders shall only share contact details (e.g. addresses, telephone numbers etc) if necessary for the Item Recovery; and
7.2.2.Owners shall not use the Reward Transfer Services before they recovered the lost item.
7.3.You undertake to use the Services in accordance with the terms of this Agreement and any such conditions and/or reasonable instructions as may be notified to You by Us from time to time and in accordance with the law. We may from time to time vary the technical and/or operational procedures for use of the Services.
7.4.You must not use or allow anyone to use the Services:
7.4.1.to post offensive, abusive, indecent, obscene, menacing, defamatory or libelous content;
7.4.2.to cause annoyance, inconvenience or needless anxiety to anyone;
7.4.3.to post false, inaccurate or misleading content;
7.4.4.to violate or infringe the rights (including Intellectual Property Rights) of third parties;
7.4.5.to distribute or post spam, unsolicited or bulk electronic communications, chain letters, or pyramid schemes;
7.4.6.to distribute viruses or any other technologies that may harm White Boomerang, or the interests or property of Our Users;
7.4.7.in breach of the terms of this Agreement; or in breach of the law; or
7.4.8.to commit fraud or a criminal offence.
7.5.You must not:
7.5.1.copy, modify, or distribute rights or content from our Services or any White Boomerang copyrights and trademarks;
7.5.2.copy, reproduce, reverse engineer, modify, create derivative works from, distribute, or publicly display any content (except for Your Information) from our Services without Our prior express written permission (and the consent of the appropriate third party, as applicable);
7.5.3.commercialise any White Boomerang application or any information or software associated with such application; and
7.5.4.harvest or otherwise collect information about Users, such as email addresses, without their consent.
7.6.You are responsible for the use of the Services through Your Account (whether authorised or not and whether by You or any other person including any hacker), including without limitation for all Charges incurred and for any breaches of this Agreement.
7.7.If you see something on Our Website that You believe may violate Our terms and conditions, You may report it to Us using Our “Report Link”.
7.8.You should take care to provide a current, valid email address and be aware that Your email filter settings may treat Our emails as spam or direct them to your junk folder.
7.9.You must follow our reasonable instructions at any time.
8.1.Charges are as referred to in the Price List.
8.2.We may decrease or increase Our Charges at any time by amending the Price List on Our Website
8.3.Your liability for Charges starts from the Commencement Date whether or not the Services are used. You are liable for the Charges even where the Services are used by third parties through Your Account either with or without Your knowledge or consent.
Account Verification Charges
9.1.The Account Verification Charges are payable in advance.
Reward Transfer Charges
9.2.The Reward Transfer Charges will be collected along with the Reward and be payable in advance.
10.Your Cancellation Right
10.1.As a consumer You may usually cancel a contract for the supply of services within seven (7) days (the “Cancellation Period”), beginning on the day after the conclusion of contract. However, by ordering the Services using Our Website You have confirmed that You agree to the terms of this Agreement and hence You agree also that the provision of Services shall start before the end of the Cancellation Period. Therefore, Your cancellation right shall end as soon as We start providing the Services.
10.2.If you cancel Your Order before we have started providing the Services and you have made any payments in advance for the Services that have not been provided to you, We will refund these amounts to you within 14 calendar days.
11.Suspension and other White Boomerang' Rights
11.1.1.cancel unconfirmed accounts or accounts that have been inactive for more than 6 months;
11.1.2.temporarily suspend the Services or any part thereof to vary the technical specification of the Services or for repair, maintenance or improvement or to protect life, limb or property;
11.1.3.at Our discretion, suspend the Services and/or terminate the Agreement if You are in breach of any provisions of clauses 7 or 9 above;
11.1.4.do whatever is required of it to comply with laws, regulations or instructions issued by the government, an emergency service or other competent authority; and
11.1.5.suspend the Services in accordance with the provisions of this Agreement.
11.2.Except in an emergency when no such notice is required, We will aim to give You as much notice as reasonably practicable if the Services are to be suspended but You shall have no claim against Us for any suspension of the Services pursuant to Clause 11.1 above. Any exercise by Us of Our right to suspend the Services shall not exclude Our right to subsequently terminate this Agreement.
12.Termination of the Agreement
12.1.Each Party may terminate this Agreement by giving the other Party 30 days written notice.
12.2.Notwithstanding Clause 12.1, White Boomerang may terminate this Agreement immediately on written notice, and without having to pay any compensation to You if:
12.2.1.You are the subject of bankruptcy or insolvency proceedings in the United Kingdom or elsewhere, a receiver or administrator (or equivalent) is appointed over any of Your assets, or You enter into any formal or informal composition or arrangement (or equivalent) with Your creditors, or You or White Boomerang reasonably believes that such events are reasonably likely to occur;
12.2.2.You materially breach (including without limitation failure to pay any Charges promptly) this Agreement;
12.2.3.We suspect on reasonable grounds that You may have committed or may be committing (i) a breach of any law; and/or (ii) any fraud against Us or any third party;
12.2.4.In any circumstances where under this Agreement, We have the right to suspend the Services;
12.3.On termination of this Agreement:
12.3.1.We shall have the right to delete all the respective content uploaded to Our Website.
12.3.2.The accrued rights, remedies, obligations and liabilities of the parties as at expiry or termination shall be unaffected, including the right to claim damages in respect of any breach of this Agreement which existed at or before the date of termination or expiry; clauses which expressly or by implication survive termination shall continue in full force and effect; and
12.3.3.Any licenses granted under this Agreement will cease.
13.Intellectual Property Rights
Our Intellectual Property Rights
13.1.Nothing in this Agreement entitles You to use White Boomerang’s logo and trademark or any of White Boomerang’s Intellectual Property Rights without Our prior written consent.
13.2.All Intellectual Property Rights pertaining to the Services shall remain the sole and exclusive property of White Boomerang or its licensors and nothing in or pursuant to this Agreement shall operate as a transfer or licence of Intellectual Property Rights to You.
13.3.When providing Us with content (e.g. uploading text and photographs to our messaging board), You grant Us a non-exclusive, worldwide, perpetual (or for the duration of any copyright or other rights in such content), irrevocable, royalty-free, sub-licensable right to use the content and authorise Us to exercise any and all copyright, trademark, publicity, database or other rights You have in or to the content in any media known now or in the future.
13.4.Further, to the fullest extent permitted under applicable law, you waive your moral rights in the content and promise not to assert such rights against Us, Our sub-licensees or assignees.
14.Limitations of Liability
14.1.Nothing in this Agreement shall limit or exclude either Parties’ liability for:
14.1.1.death or personal injury caused by its negligence, or the negligence of its employees, agents or subcontractors; or
14.1.2.fraud or fraudulent misrepresentation.
14.2.Subject to clause 14.1, We shall under no circumstances whatsoever be liable to the User, whether in contract, tort, breach of statutory duty, or otherwise, for any loss of profit, loss of business, business interruption, or loss of business opportunity, or any not foreseeable loss arising under or in connection with this Agreement.
14.3.Nothing in this Agreement shall exclude or restrict a Party’s liability for matters which cannot by law be excluded or restricted.
14.4.Except as expressly stated in this Agreement, all warranties, representations, conditions, undertakings or terms, express or implied in respect of the White Boomerang’ Services are excluded to the fullest extent permitted by law.
14.5.This clause 14 shall survive the termination of this Agreement.
15.Holding Us Harmless
15.1.You shall hold Us, Our affiliates, subsidiaries, officers, agents, partners, employees and licensors harmless from and against any and all claims, actions and proceedings made or brought by any third party (including intellectual property right holders) against all liabilities, losses, costs, damages (including legal costs as part of a pre-litigation and settlement process or otherwise), and expenses incurred by Us, arising out of or related to any breach of any of the provisions of this Agreement.
16.1.Other than as expressly set out in this Agreement and to the greatest extent permitted by law, We make no representations or warranties with respect to the Services, or the performance of its obligations hereunder, and expressly exclude such representations and warranties, whether implied, statutory or otherwise.
16.2.In particular, but without prejudice to the generality of Clause 16.1, You acknowledge and accept that We do not warrant that the Services will be available at any particular time or continuously.
17.Assignment and Sub-contracting
17.1.You must not assign or delegate or otherwise deal with all or any of Your rights or obligations under this Agreement without the prior written consent of White Boomerang.
17.2.White Boomerang may assign, novate transfer (in whole or in part) or charge or deal in any manner or otherwise delegate all or any of its rights or obligations under this Agreement to any person or entity.
17.3.White Boomerang may sub-contract any of its obligations under this Agreement.
18.1.Neither Party shall be liable for any breach of its obligations under this Agreement (other than in relation to payment of sums due) where it is hindered or prevented from carrying out its obligations by any cause outside its reasonable control, including, without limitations, acts of God, acts of Government or other competent regulatory authority, lightning, fire, flood, extremely severe weather, strike, lock-out, labour dispute, war, riot, civil commotion, malicious damage, failure of any telecommunications or computer system, compliance with any law or regulation and accident (or by any damage caused by any of such events). Where such cause continues for more than 3 calendar months either Party may, without additional liability, terminate this Agreement by giving not less than 30 days’ written notice to the other Party.
19.1.We may revise the terms of this Agreement from time to time.
19.2.Every time you order Services from us, the terms and conditions in force at that time will apply to the Agreement between You and Us.
19.3.Whenever we revise the terms of this Agreement in accordance with this clause 18, we will keep you informed and give you notice of this by posting an announcement on Our Website stating that the terms and conditions have been amended including the relevant date at the top of the webpage.
20.1.Unless otherwise stated in this Agreement:
20.1.1.Notices sent by You to White Boomerang shall be sent any of the following methods:
18.104.22.168.by hand or by recorded delivery to the following address or as otherwise notified to You:
Attn: White Boomerang PO Box 65900 London N7 1DJ
22.214.171.124.by electronic mail to the following electronic email address or as otherwise notified to You:
20.2.Notices sent by White Boomerang to You may be sent (i) by hand or by recorded delivery to Your billing address specified in Your account details or to Your registered office; or (ii) by fax to Your fax number notified by You to Us in writing; or (iii) by electronic mail to Your electronic mail address specified in Your account details or as otherwise notified to Us in writing.
20.3.Notice given by hand shall be deemed given the same day. Notice given by recorded delivery on the date and at the time of signature of the delivery receipt. Notice given by fax shall be deemed given when transmitted provided that the sender shall have received a transmission report confirming correct transmission. Any communication by electronic mail from You to Us shall be deemed to have been received when We acknowledge receipt to You of such electronic mail. Any communication from Us to You by electronic mail shall be deemed to have been made on the working day on which the notice is first stored in Your electronic mail-box.
21.2.We may use Your personal data for the purposes of performing the Services under this Agreement.
22.1.This Agreement together with any other documents expressly referred to in this Agreement represent the entire understanding between the Parties with respect to the subject matter of it and supersedes and extinguishes all other agreements or representations (except fraudulent misrepresentations) made by either Party, whether oral or written. In particular White Boomerang shall not be bound by any oral or written representation (except fraudulent misrepresentations) made by its representatives unless specifically incorporated into this Agreement in writing.
23.1.No waiver by Us of any default by You under this Agreement shall operate or be construed as a waiver by Us of any future defaults, whether of a like or different character. No granting of time or other forbearance or indulgence by Us to You shall imply a waiver of Our rights or shall in any way release, discharge or otherwise affect Your liability under this Agreement.
23.2.If any court or any governmental agency or authority of competent jurisdiction holds any provision of this Agreement to be invalid, void, or unenforceable, including in particular any limitation of liability or exclusion of implied terms, then (i) if necessary, the Parties agree to rewrite the applicable provision to reflect as nearly as possible the original intentions of the Parties in accordance with applicable law, and (ii) the remainder of this Agreement shall nevertheless remain legal, valid, and enforceable.
23.3.In the event of any inconsistencies between the contents of these terms and conditions, the order form and the Price List, the order of precedence shall (unless expressly stated to the contrary) be (i) these terms and conditions; (ii) the order form; and (iii) the Price List.
23.4.The Parties do not intend that this Agreement be enforceable by any person not a party to this Agreement including under the General Terms (Rights of Third Parties) Act 1999.
24.Governing Law and Jurisdiction
24.1.These Terms are governed by English law. You and We both agree to submit to the non-exclusive jurisdiction of the English courts. However, if you are a resident of Northern Ireland you may also bring proceedings in Northern Ireland, and if you are a resident of Scotland, you may also bring proceedings in Scotland.