1.0

THIS AGREEMENT

This document sets out the basis of your Agreement with Top Up TV Europe Limited. Under this Agreement we agree to provide you with certain television services and you make certain promises to us regarding payment and other matters. In this document we refer to Top Up TV Europe Limited as “us” or “we” and we refer to you as “you”.

You agree(d) to be bound by this Agreement during your Subscription Process.

2.0

THE TERMS WE USE

2.1

We have used words with capital letters where those words have particular meanings. These meanings are set out below:

“Additional Service “

means content or packages of content that you choose to subscribe to in addition to the Service (and which are not included in the Channel Package);

“Additional Service Fees”

means the fees payable by you in relation to any Additional Service(s) that you subscribe to as specified during the Subscription Process;

“Address”

means the address of your home in the United Kingdom given to us during your Subscription Process;

“Agreement”

means the contract between you and us on the terms set out in this document;

“Channel Package”

means the package of channels included in the Service from time to time (or, if more than one package is available, the package(s) you select based on our package selection rules at that time);

“Connection Fee”

means, where specified during your Subscription Process only, the fee payable by you to us upon subscription to the Service or an Additional Service;

“DTT”

means digital terrestrial television;

“Fees”

means, as applicable to you, the Connection Fee, Additional Service Fees, Service Fee and Viewing Card Replacement Fee;

“Freeview”

Freeview is a separate free digital TV service which does not require a monthly subscription. Freeview is not operated by us;

“Minimum Subscription Period”

means the minimum duration of your subscription to the Service and/or an Additional Service if applicable as specified in Clause 3.2.2;

“Programme Content”

means programme content comprised within the Channel Package and/or any Additional Service(s) or that we may otherwise elect at our discretion to provide you with access to whether as, or as part of, the Service, Additional Service(s) or otherwise (including without limitation, any linear DTT broadcasts);

“Receiver”

means a Freeview integrated digital television, set top box or digital television recorder that is compatible with the Service;

“Service”

means the subscription service enabling you to access the Channel Package;

“Service Fee”

means the fee payable by you to us for the Service as set out during the Subscription Process;

“Subscription Process”

means the process by which you registered with us whether over the telephone or internet;

“United Kingdom”

means those parts of the United Kingdom of Great Britain and Northern Ireland in which DTT is available from time to time.

3.0

DURATION OF THIS AGREEMENT

3.1

Term:
This Agreement will begin on the date on which you accept this Agreement via the Subscription Process. It will continue until either you or we terminate or cancel it in a manner permitted under this Agreement. Please note that, for technical and security reasons, the Service and Additional Services may not be available at the same time as the commencement of this Agreement. Your Minimum Subscription Period will commence on the date set out in your Subscription Process or otherwise on the date of commencement of the Service/Additional Service.

3.2

Termination of this Agreement by You:

3.2.1

Unless a Minimum Subscription Period applies or as otherwise set out in this Agreement, you may terminate this Agreement at any time by giving us at least 30 days’ advance written notice by contacting us on 08712 713 500. We may also ask you to confirm any notifications of termination in writing. If you do terminate this Agreement, we will refund any part of the Fees you have paid in advance for the Service for the period after this Agreement has ended. If you otherwise choose to terminate this Agreement before the end of the Minimum Subscription Period and/or you default on Fees due then we reserve the right to charge you for such Fees as would have been payable to us in respect of such full Minimum Subscription Period.

3.2.2

We may, from time to time, make available special offer(s) (for example Service/Additional Service or Receiver rental/purchase or discounted subscriptions) which may require you to commit to a Minimum Subscription Period. If you take advantage of such an offer then your subscription to such Service/Additional Service under this Agreement or the relevant part of it will remain in force for that Minimum Subscription Period. You can only terminate before the expiry of such Minimum Subscription Period by contacting us on 08712 713 500:

(i) if we tell you we are going to change the terms of this Agreement in a way which materially affects your rights or obligations; or

(ii) if we fundamentally change to your detriment the Programme Content to which the Minimum Subscription Period applies (which we may do by giving you advance written notice by email, post or SMS message); or

(iii) as otherwise expressly set out in this Agreement.

We may also ask you to confirm any notifications of termination in writing. If you terminate under Clauses (i) or (ii) above then we will refund any part of the Fees you have paid in advance for the Service for the period after this Agreement has ended. If you otherwise choose to terminate this Agreement before the end of the Minimum Subscription Period and/or you default on Fees due then we reserve the right to charge you for such Fees as would have been payable to us in respect of such full Minimum Subscription Period.

3.3

No Cooling-Off period:
You will have access to the relevant Service/Additional Service(s) from the access time or date notified to you during the Subscription Process. You have therefore agreed that you do not have a right to cancel this Agreement within seven working days commencing on the day after you enter into this Agreement as set out in the Consumer Protection (Distance Selling) Regulations 2000. This does not affect any other cancellation rights you may have under this Agreement.

3.4

Termination or Suspension by Us

3.4.1

We may suspend or end your subscription to the Service/Additional Service and/or bring this Agreement to an end at any time on 30 days’ notice to you. If we bring this Agreement to an end in this way then we will refund any part of any Fees you have paid in advance for the Service for the period after this Agreement has ended.

3.4.2

We may bring this Agreement to an end immediately and pass your details to a third party debt collection agency to reclaim Fees owed to us, including such Fees as are specified in Clause 3.4.3, if you breach any of its terms or fail to honour your obligations under this Agreement. We may also suspend the Service/Additional Service or terminate this Agreement if bankruptcy proceedings are brought against you, you do not make payment of a court judgment on time, you make an arrangement with your creditors or if any of your assets are the subject of any form of seizure. If we bring this Agreement to an end under this Clause, we will not refund any part of any Fees you have paid in advance for the Service/Additional Service(s) for the period after this Agreement has ended.

3.4.3

Without prejudice to any other legal rights we might have, where a Minimum Subscription Period applies and you breach any of the terms of this Agreement we may require you to pay to us any Fees related to the outstanding duration of the Minimum Subscription Period.

3.5

Consequences of Termination or Cancellation:
Where this Agreement is cancelled or terminated for any reason then you will no longer be able to access the Programme Content.

4.0

THE SERVICE/ADDITIONAL SERVICE(S) AND WHAT WE PROMISE YOU

4.1

Service/Additional Service(s): We will do everything we reasonably can to broadcast the Service/Additional Service(s) you subscribe to for as long as you remain a party to this Agreement. However, you acknowledge that:

  • We may change the Programme Content from time to time.
  • Programme Content that is made available if you subscribe to the Service is made up of programmes selected from the different channels in the Channel Package. We do not broadcast entire channels as part of the Service. This means that programmes from channels in the Channel Package may be available to you at times different to their “live” broadcast hours on the actual channels.
  • We may provide you with access to additional Programme Content (whether via your Receiver or in the form of broadcast content) that we think may be of interest to you at our discretion from time to time.
  • We do not provide the service offered by Freeview, and are not responsible for it in any way. Any issues concerning the channels that form the Freeview service should be directed to Freeview and not to us.
  • In order to receive the Service or Additional Service(s) that you subscribe to, you must be able to receive Channel Five via DTT.

4.2

Technical Difficulties: We will make all reasonable efforts so that you will receive the Service/Additional Service(s) without any interruptions. However, from time to time, faults occur with technology and you may experience occasional disruptions (for example, because of planned or emergency maintenance) to the Service/Additional Service(s). You may also experience difficulties in reception of the Service/Additional Service(s) depending on where you live and the condition of your aerial and we cannot be liable for such difficulties which are beyond our control. If you find that you are unable to receive the Service/Additional Service(s) because of where you live, you may end your subscription and this Agreement by notifying us in writing.

4.3

Telephone calls: If you telephone us we may record your call for training purposes and to ensure that information is captured accurately and in order to monitor the quality of service that we provide to you. We will not do so for any reason unconnected to these purposes.

4.4

Programming : We are constantly looking to improve the Service and Additional Services. This may mean that some parts of the Service or Additional Service(s) you receive may be discontinued or replaced with alternative Programme Content or that the number of hours for which they are broadcast is altered without notice. We reserve the right to recategorise any channel in the Channel Package as an Additional Service (meaning that you must subscribe to it separately and pay an additional fee where required) or vice versa.

4.5

Change to Payment Amount: We may change the Fees to cover any increase in the Retail Price Index or otherwise at any time by giving you advance written notice by email, post or SMS message (in which case, your attention is drawn to your rights under Clause 3.2). However, where you are subject to a Minimum Subscription Period, we agree that, unless such change is due to your decision to change what you subscribe to under Clause 4.6, we will not increase each of the Connection Fee, Service Fee and/or Additional Service Fees more than once in any year. However, we may also change the amount of any of the Fees with immediate effect to reflect any change in the applicable rate of VAT and/or if we are required by law or a regulatory authority to change our pricing structure in a way which affects the Fees.

4.6

Changing your choice : Subject to any Minimum Subscription Period, you may subscribe to or de-subscribe from the Service and/or any Additional Service(s) at any time by contacting us on 08712 713 500. We may also ask you to confirm any notifications of termination in writing. The changes (and any consequential changes to the Fees) will take effect 30 days after our receipt of such notice except that a subscription to a further Service or Additional Service may be available on the same day.

5.0

WHAT YOU PROMISE US

5.1

Personal Details: You confirm that all information you have supplied to us is correct. You will tell us if you change your Address, email address and/or telephone number or change your Receiver or make or change your payment details.

5.2

Fees and Payment: You agree to pay us any Connection Fee (where relevant) upon accepting this Agreement and to pay the relevant Service Fee in the way we have agreed with you during the Subscription Process and confirmed to you in writing. You will provide us with ongoing and valid payment details regarding payment for the Service Fee / Additional Service(s) Fees including during any free period. If you fail to provide us with such ongoing valid payment details we will have the right to terminate this Agreement in accordance with clause 3.4.2. Any such Connection Fee, where applicable, is non-refundable.

5.3

Direct Debit/Credit Card: If you have chosen to pay by direct debit or credit card:

5.3.1

you agree to allow us to alter your direct debit or credit card instruction (including the amount) for any reason, subject to the terms of the Direct Debit Guarantee;

5.3.2

we may also charge any other payment due to us under this Agreement or any other agreement you have with us by means of your direct debit or credit card; and

5.3.3

you confirm that the card that is being used is yours. All credit/debit card payments are subject to validation checks and authorisation by the card issuer. If the issuer of your card refuses to authorise payment, or we or our authorised agents are unable to contact your card issuer we will not be liable for any delay or non-delivery of the Service/Additional Services and we are not obliged to inform you of the refused payment.

5.4

We may offer you the opportunity to pay by alternative payment means from time to time such as cash or online payment system. If we do so, we may charge more for the Service/Additional Service in order to cover, for example, our additional administration costs. Any such charges will be set out in the Subscription Process.

5.5

Credit Check: We may carry out a credit check on you which involves searching the files of one or more credit reference agencies (which may keep a record of the search). We may also disclose details about your conduct as a customer to those credit reference agencies. Information thus held is used only to help make credit decisions affecting you or members of your household, or occasionally for fraud prevention or tracing debtors.

5.6

Personal Data: We are registered under the Data Protection Act 1998. Your personal data will be used and processed in accordance with our privacy policy which is available on our website at www.topuptv.com.

6.0

RECEIVER

This terms and conditions in this clause 6 are in addition to the terms and conditions which came with your Receiver.

6.1

Receivers: We do not provide Receivers under this Agreement and cannot be held responsible for any faults with them, incompatibility with the Service or any damage they may cause. You should contact your Receiver retailer in the event of any problems.
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7.0

WHAT RIGHTS AND REMEDIES WILL YOU HAVE AGAINST US?

7.1

Acceptance of liability: We will always be liable to you for death or personal injury caused by our negligence. In addition we do not restrict or limit our liability to the extent it arises as a result of our breach or negligence (except as set out in this Clause 7).

7.2

Limitation of liability: Subject always to the first sentence of Clause 7.1 and Clause 7.3, we will not be liable under this Agreement for any damage or loss suffered or incurred by you:

7.2.1

as a consequence of any fault in a Receiver, your television set or your aerial or any problems associated with Freeview, its channels or service information;

7.2.2

as a consequence of any use of the Service with any Receiver which we have not approved;

7.2.3

as a consequence of your negligence or failure to follow our reasonable instructions; or

7.2.4

for losses you incur that were not foreseeable to you and us when the Agreement was entered into (whether due to our breach of this Agreement or the Receiver otherwise);

7.2.5

that was not caused by our breach or negligence;

7.2.6

if you are not entering into this Agreement as a consumer; or

7.2.7

due to your failure to adhere to the recommendations and requirements specified in Clause 4.1.

7.3

We will not be liable under this Agreement for any damage or loss suffered or incurred by you as a consequence of our failure to provide the Service caused by events outside our reasonable control (this includes, but is not limited to, transmission failure, extremes of weather, industrial disputes, nuclear accident, acts of God, war or terrorist activity, riot, civil commotion, malicious damage, compliance with any law or governmental order, rule, regulation or direction coming into force after the date of this Agreement, accident, breakdown of plant or machinery, fire, flood, storm or default of suppliers or sub-contractors).

7.4

To the fullest extent permissible under law, we disclaim any and all warranties of any kind (whether express or implied) in relation to the Service and/or Additional Service(s). Your statutory rights as a consumer are not affected however. For more details on your statutory rights you should contact your local Trading Standards Office or Citizen’s Advice Bureau.

7.5

Subject to clauses 7.1 and 7.2 our liability to you in contract, tort, negligence, pre-contract or other representations or otherwise arising out of or in connection with this Agreement shall be limited in aggregate to the Fees paid by you.

7.6

Consequences of termination: Upon termination of this Agreement for any reason you will not be entitled to receive the Service/Additional Service(s).

8.0

USE OF THE SERVICE/ ADDITIONAL SERVICE(S)

8.1

Your Promise To Us: You confirm to us that you will only use an authorised Receiver and at your Address for the purposes of viewing those parts of the Service/Additional Service(s) which you are entitled to view for private domestic viewing purposes. In particular you will not sell or make any charge for watching any part of the Service/Additional Service(s) or view any part of it in any public place or in any private place other than a home (for example a hotel, motel, restaurant, bar or other licensed premises or any club or similar place).

8.2

Copying: You agree not to redistribute or relay any part of the Service/Additional Service(s) or Programme Content to third parties and not to make any recording or copy except for viewing at your Address at a more convenient time. We may take technical steps to ensure that you cannot copy any part of the Service/Additional Service(s) where we are under a contractual obligation to do so.

8.3

Your duty to compensate us: If you use the Service/Additional Service(s) for any purpose other than for private domestic viewing, you will be liable to compensate us in full for any loss, liability or cost which we incur arising from or in connection with any breach by you of this Agreement.

9.0

OTHER MATTERS

9.1

Transfer of this Agreement: We may wish to transfer our rights or obligations under this Agreement to any other legal entity. You agree that (i) we may do so provided that this will not affect the scope of your rights but only the entity against which you may assert your rights; and (ii) after we notify you of the date we will transfer the rights and obligations under this Agreement to another legal entity, your only rights under or in connection with this Agreement will be against the new legal entity and not Top Up TV Europe Limited.

You may not transfer your rights or obligations under this Agreement to anyone else.

9.2

Governing Law: This Agreement is governed by and interpreted in accordance with the laws of England (or the laws of Scotland if you are domiciled there). Disputes arising in connection with this Agreement shall be subject to the exclusive jurisdiction of the courts of England and Wales unless you choose the jurisdiction of your domicile in Scotland or Northern Ireland.

10.0

CONTACT DETAILS

10.1

Top Up TV Europe Limited has its registered office at:


Top Up TV Europe Limited, 22 Grenville Street, St Helier, Jersey JE4 8PX.

10.2

Our VAT number is GB 918 0222 49

10.3

Our cancellation department hours are available as follows:

For cancellations, call 08712 713 500 (calls are charged at 10p per minute from a BT landline. Call from mobiles and other networks may be considerably more). This line is open between 10am and 6pm, Monday to Friday. Information correct at time of going to print July 2009.
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For correspondence, write to TVX, PO Box 801, Kirkcaldy, Fife, KY2 6WW or email tvxcs@channel93.mgtplc.com.