Vertu Concierge Terms & Conditions
24
DRAFT FEBRUARY 06
information and suggestions comprised within the VC services.
You are deemed to be responsible for, and shall use your own skill
and judgement as to, the quality, value and suitability of such
information and suggestions in relation to deciding whether to
enter into any contract with any third party for the supply of
services or sale of goods.
19. Vertu as Agent
Your contract for the purchase of products or services is made
with the relevant Supplier only. Vertu acts as an agent for the
Supplier and, unless expressly provided otherwise, all your rights
and remedies are against the Supplier.
20. Disclaimers
Vertu will not be responsible for products and services offered by
Vertu as agents for the Suppliers or for any aspect of the
relationship between you and any particular Supplier. Vertu will
however do everything it reasonably can to assist you in any
dealings you have with the Supplier.
You agree that any contract entered into by you with any of the
Suppliers is an independent contract. Vertu hereby disclaims any
and all liability for any act or omission of any Supplier or any loss
incurred by you as a result of any act or omission of a Supplier
whether or not arranged through VC.
21. Limitation of Liability
Vertu accepts no liability for any losses or claims arising from any
inability to contact VC or any failure to complete a transaction.
Save in respect of death and personal injury caused by the
negligence of Vertu or as expressly provided for in these Terms
and Conditions, Vertu shall not be liable for any loss, cost,
expense or damage of any nature whatever (whether direct or
indirect) resulting from the provision of the Services or your
reliance upon the information and suggestions provided by Vertu
hereunder and the resulting supply of goods and services to you
by any third party.
Vertu shall have no liability to you for any loss, damage, costs,
expenses or other claims for compensation arising from requests
or instructions supplied by you which are incomplete, incorrect or
inaccurate or arising from their late arrival or non-arrival, or any
other fault of you.
Vertu shall not be liable to you or be deemed to be in breach of
these Terms and Conditions by reason of any delay in performing,
or any failure to perform, any of Vertu 's obligations in relation to
the VC services, if the delay or failure was due to any cause
beyond Vertu 's reasonable control.
Except in respect of death and personal injury caused by the
negligence of Vertu and subject to the provisions of these Terms
and Conditions, Vertu's maximum liability to you for breach of any
of its obligations hereunder shall be limited to the value of the
annual subscription fee, if any, and the relevant charge for the VC
services to be provided.
The limitations of liabilities set out herein apply only to the
maximum extent permitted by law.
22. Governing Law and Arbitration of Disputes
Any and all claims, except claims for monies due to Vertu, arising
out of or relating to the use of VC must be commenced within one
(1) year after the date either you or Vertu knew or should have
known of the facts giving rise to such claim, after which such
actions shall be barred. If acceptance of your membership
request or a particular service request takes place within Europe,
Middle East or Africa, the governing law shall be English law. All
disputes arising out of or in connection with these Terms and
Conditions shall be finally settled under the Rules of Arbitration of
the International Chamber of Commerce by one arbitrator
appointed in accordance with the said Rules. The arbitration
proceedings shall be conducted in London, England in the
English language. The arbitration decision shall be final and
binding. Provided that the parties shall have the right to take
proceedings in any other jurisdiction for the purposes of enforcing
a judgment or order obtained from the courts of England and
Wales.
If acceptance of your membership request or a particular service
request takes place within Asia Pacific, the governing law of these
Terms and Conditions shall be Singapore law. All disputes arising
from or connected to these Terms and Conditions shall be settled
finally and exclusively in Singapore under the Rules of the
Singapore International Arbitration Centre (SIAC Rules). The
arbitration shall be conducted in English in Singapore. The award
shall be final and binding on both parties. Provided that the parties
shall have the right to take proceedings in any other jurisdiction for
the purposes of enforcing the arbitral award.
If acceptance of your membership request or a particular service
request takes place within the Americas region, all disputes and
matters relating to arbitration shall be governed by the Federal
Arbitration Act (9 U.S.C. §§1 et. seq.). Except to the extent
governed by applicable U.S. federal law, any transactions with VC
and its Suppliers shall be governed by the laws of the State of
Texas, excluding its conflict of law rules. Any and all claims, except
claims for monies due to Vertu, arising out of or relating to your
membership and use of VC shall be barred unless an action or
legal proceeding is commenced within eighteen (18) months after
the date you or Vertu knew or should have known of the facts
giving rise to such claim. Any dispute relating in any way to your
membership and use of VC and any orders placed through VC,
shall be submitted (together with any counterclaims and disputes
under or in connection with other transactions and/or agreements
between you and Vertu) to final and binding, confidential
arbitration to the Dallas, Texas office of the American Arbitration
Association (the “AAA”), with such arbitration to be held in Dallas
County, Texas, except that, to the extent you have in any manner
violated or threatened to violate any Vertu or Vertu affiliates' or
licensors' intellectual property rights, Vertu may seek injunctive or
other appropriate relief in any state or federal court in the state of
Texas or, at Vertu's option, any other appropriate state or country,
and you consent to exclusive jurisdiction and venue of such court.
Arbitration under these Terms and Conditions shall be conducted
under the then prevailing Wireless Industry Arbitration Rules of
the AAA (except as such rules may be modified by the terms of
these Terms and Conditions), unless otherwise agreed in writing
by the parties and shall be heard by a single arbitrator. Subject to
any terms contained in these Terms and Conditions limiting or
excluding damages, the arbitrator may award any relief that the
arbitrator deems proper, including without limitation equitable
relief, provided that no award of exemplary, special, consequential
or punitive damages shall be permitted. The prevailing party, as
determined by the arbitrator, shall pay the AAA arbitration fees
and the arbitrator's fees and expenses, as applicable. The
arbitrator's award shall be binding and may be entered as a
judgment and enforceable in any court of competent jurisdiction.
To the fullest extent permitted by applicable law, the arbitration
shall be conducted on an individual, not a class-wide basis, and
no arbitration under these Terms and Conditions shall be
consolidated with or joined to an arbitration involving any other
person or entity, whether through class arbitration proceedings or
otherwise, without the prior written consent of you and Vertu.
23. Force Majeure
Vertu shall not be liable for loss or damage caused by any delay or
failure to perform its obligations under these Terms and
Conditions caused by failure of any machine, system of
authorization, data processing or communications system,
transmission link, strikes, lockouts, riots, war, fire, acts of God,
accidents, material or transportation shortages, governmental
restrictions or injunctions, or denial of import or export licenses, or
compliance with any law, regulation or order, or due to any other
circumstances or causes that have the effect of frustrating
performance of these Terms and Conditions, or any other cause
beyond the control of Vertu.
24. General Provisions
Headings - The headings of each of these Terms and Conditions
are for convenience of reference only and shall not form part of
these Terms and Conditions. Such headings shall be ignored in
the interpretation or construction of any of these Terms and
Conditions.
Severability - If any provision or provisions of these Terms and
Conditions shall be held to be invalid, illegal or unenforceable,
such provision shall be enforced to the fullest extent permitted by
applicable law, and the validity, legality and enforceability of the
remaining provisions shall not in any way be affected or impaired
thereby.
No Waiver - Vertu's failure to insist on performance of any term or
condition contained in these Terms and Conditions, or failure to
exercise any of Vertu's rights hereunder, shall not constitute a
waiver of any of Vertu's rights or remedies under these Terms and
Conditions.
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