1.GENERAL

1.1These terms and conditions apply to your use of the Services and to the submission of any Application(s) or Contribution(s) by you. Please read them carefully.

1.2 In this Contract any reference to "we", "us", "our" or "O2" refers to Telefónica O2 UK Limited of 260 Bath Road, Slough, Berkshire SL1 4DX, registration number 1743099 or any organisation that may succeed it as the assignee of this Contract;
any reference to "you" or "your" refers to you, the user of the Services (including any person who we reasonably believe is acting with your authority or knowledge); and
capitalised terms have the meanings given to them in section 2 below.

1.3 By accessing, registering or using any of the Services (including submitting any Applications or Contributions), you confirm that you have read and agree to be bound by these terms and conditions.

2. DEFINITIONS

2.1 There are a number of defined terms used in this Contract which mean the following for the purposes of this Contract:

Application means: (i) an idea for development which you submit for inclusion on the O2 Litmus Community; and/or (ii) any code, links, web site, web service and/or installation files and related materials which you upload/publish on the O2 Litmus Community and make available to other users for access, transmission and/or download in accordance with Clause 5.10 below; and

Content means information, text, data, communications, images, photographs, graphics, links, URLs, music, video, games and sounds, software or any other material supplied by you, us or third parties (including other users) and which is contained on or available via the O2 Litmus Community;

Contract means the agreement between us and you relating to the provision and use of the Services, including these terms and conditions, our Privacy Policy (located at http://www.o2.co.uk/termsconditions/o2privacypolicy) and any specific policies, disclaimers, conditions, guidelines or rules applying to the Services (or any part of them) which may be notified to you. In the event of any conflict, these various documents will take precedence in this order;

Contribution means any Content (including without limitation feedback, materials or information relating to the Services) posted or uploaded by you or any blog, user forum or discussion board on the O2 Litmus Community. For the avoidance of doubt, submission of an Application shall not constitute a Contribution;

Intellectual Property Rights means (i) patents, designs, trade marks and trade names (whether registered or unregistered), copyright and related rights, moral rights, database rights, know-how and confidential information; (ii) all other intellectual property rights and similar or equivalent rights anywhere in the world which currently exist or are recognised in the future; and (iii) applications, extensions and renewals in relation to any such rights;

O2 Litmus Community means the website hosted by or on behalf of O2 and located at www.o2litmus.co.uk; and

Services means the tools, services, functionality and materials (including Content) available on the O2 Litmus Community including the ability to upload a link to your Application(s).

3. TERM

3.1 This Contract begins on the date that you first use any of the Services or complete any necessary registration requirements, if applicable, and will continue until terminated in accordance with this Contract.

4. CHANGES TO THESE TERMS

4.1 We may vary these terms and conditions and any other part of this Contract at any time. Such modifications will become effective immediately upon posting of the modified terms on this site or by us notifying you by email of the changes, provided that if we change these terms and conditions or any other part of this Contract to your significant disadvantage (in our reasonable opinion) we will give you 30 days notice before the changes take place.

4.2 You may stop using any of the Services at any time. By continuing to use the Services following any variation, you will be deemed to accept such variation.

5. ACCESS TO THE SERVICES

5.1 We may suspend or restrict access to the whole or any part of the Services for operational reasons such as repairs, maintenance, updating or upgrading the content or functionality of any part the Services or the introduction of new facilities or services at any time. We will attempt to limit the frequency and duration of any such suspension or restriction.

5.2 The Service is not fault free and it may be impaired by conditions or circumstances beyond our control. However, we will use reasonable endeavors to ensure the uninterrupted and timely supply of the Services and we will correct reported faults as soon as we reasonably can. If a fault occurs, please follow the process set out here to report the fault.

5.3 The Services are provided without any warranties or guarantees (including any warranties implied by law) unless expressly stated otherwise. You acknowledge that the Services, Content and/or other materials available on the O2 Litmus Community may be incomplete, out of date or inaccurate and are provided on an "as-is" basis. It is a condition of us allowing you to access to and use the Services that you accept that we will not be liable for any action you take in reliance on any Content or material contained on, or accessed via, the O2 Litmus Community.

5.4 You will only be permitted to make your Application available to O2 mobile customers who have been invited to join the O2 Litmus Community.

5.5 If we believe that unauthorised or improper use is being made of any Service (including, without limitation, the submission of inappropriate Applications or Contributions), we may, without notice, take such action as we deem appropriate.

5.6 In addition to anything else we can do, we reserve the right to immediately and without notice withdraw, bar or suspend your access to or the provision of any Services to you or end this Contract (or both) with immediate effect if:
you breach any provision of this Contract;
we believe the Services are being used in a manner prohibited under this Contract, even if you are unaware that the Services are being used in such a way;
you have not used any particular or all of the Services within the previous 90-days;
you fail to pay for any of the Services; or
bankruptcy or insolvency proceedings are brought against you or if you do not make any payment on time under a judgment of a Court, you make an arrangement with your creditors, or (if a company) a receiver or administrative receiver is appointed over any of your assets or you go into liquidation.

5.7 If we suspend your use of the Services for contravention of any part of this Contract, we will not restore it until we receive an acceptable assurance from you that there will be no further contravention.

5.8 We reserve the right in our sole discretion at any time to refuse you access to the Services at any time.

5.9 You are responsible for providing all equipment necessary for you to access the O2 Litmus Community and/or use the Services.

5.10 You acknowledge that the O2 Litmus Community will only host the client side elements of your Application, and provide the means to publish a link to your Application. Server side hosting and maintenance of your Application is solely your responsibility. There is no provision for publishing your entire Application onto the O2 Litmus Community. Any infrastructure requirements such as deployment servers for applications and/or databases must be maintained and hosted by you.

5.11 You must comply with all laws and regulations relating to data protection (including, without limitation, the Data Protection Act 1998) at all times when using the Services. You may only interact with other users of the O2 Litmus Community (including looking up information such as location or any other information about O2 customers or O2 Litmus Community Members or attempting to contact users by SMS-MT or otherwise) where you have the relevant member's express permission to do so. For the avoidance of doubt, you shall only use information you obtain about O2 customers or O2 Litmus Community Members via the Services for the purposes of your participation in the O2 Litmus Community.

5.12 You must comply with rules specified by PhonepayPlus in relation to the "STOP" command from time to time. Please refer to www.phonepayplus.org.uk for further information on this requirement.

6. YOUR SUBMISSIONS TO THE O2 LITMUS COMMUNITY

Contributions

6.1 In respect of your Contributions, you warrant that:
all Contributions will be civil, tasteful and otherwise in accordance with the requirements of this Contract (including, without limitation, section 7.1 below);
the information in your possession and provided by you will not constitute a criminal offence or be otherwise unlawful;
all necessary licences and consents (including those from owners of copyrights or performing rights) have been obtained to upload or publish the Contribution on the Services; and
you have the prior express consent of any identifiable person(s) appearing in your Contribution to feature in your Contribution, submit it to the O2 Litmus Community and use your Contribution in the manner contemplated by the Service.

6.2 You hereby grant to O2 an irrevocable, perpetual, world-wide and royalty-free licence to use, reproduce, modify, adapt, publish, translate, distribute and sub-licence your Contribution, make it available to the public and/or to incorporate your Contribution in other works in any media now known or later developed for the full term of any rights that may exist in your Contribution as we may require. If you do not want to grant us these rights, please do not submit your Contribution.

6.3 You acknowledge that any Contributions are provided on a non-confidential basis.

6.4 You accept that we are under no obligation to edit, review or modify any Contribution by you or any material posted by a third party. However, we reserve the right to: (i) monitor your use of the Services in order to maintain the Services and to protect the rights of other users of the Services; and/or (ii) edit or remove any Content (including your Contribution), in whole or in part, at our sole discretion if we believe that there may be a breach of this Contract or if the Contribution does not comply with our notified requirements.

6.5 You acknowledge that the O2 Litmus Community is primarily a self governing environment. Please report any inappropriate Content, Contributions, Applications or other material using the notification tools on the site.

Applications

6.6 You can submit Applications to the O2 Litmus Community.

6.7 In respect of Applications, you are responsible for ensuring that:

any Intellectual Property Rights notices are included in your submission and are accurate;
your Applications are virus-free;
you provide end-user support and contacts detail for each Application;
you use reasonable care and skill in producing your Application(s); and
your submission and/or your Application is not illegal, offensive, abusive, malicious, threatening, racist, indecent, defamatory, pornographic, derogatory, obscene, menacing, or otherwise objectionable.

6.8 The Intellectual Property Rights in your Applications remain owned by you (or your licensors). You hereby grant O2 a non-exclusive, royalty-free, worldwide licence to use, host, copy and otherwise deal with your Application(s) for the purposes of allowing end user to download your Application(s) from the O2 Litmus Community.

6.9 Users' download of and/or access to your Application will be subject to any licence terms you specify. You are responsible for ensuring the accuracy and appropriateness of your end-user licence terms. Your end-user licence terms must not refer to O2 or give any commitment from or create any obligations for O2. O2 has provided a set of example end-user terms and conditions on the O2 Litmus Community. You may choose to use these terms as the basis of your licence to the end-user but you are not required to do so.

6.10 We reserve the right to remove any Application from the O2 Litmus Community at any time.

6.11 You warrant that:

you have the right to upload your Application to the O2 Litmus Community;
your Application does not infringe any Intellectual Property Rights;
your Application (and any use of it by O2 and/end-users) complies with all applicable laws and regulations (including, without limitation, the Disability Discrimination Act 1995) and
your submission and/or your Application is not illegal, offensive, abusive, malicious, threatening, racist, indecent, defamatory, pornographic, derogatory, obscene, menacing, or otherwise objectionable.

7. ACCEPTABLE USE

7.1 You must not use the Services:
for unlawful or fraudulent purposes, or in connection with a criminal offence or other unlawful activity;
to send, receive, upload, download, use or reuse any material that is illegal, offensive, abusive, malicious, threatening, racist, indecent, defamatory, derogatory, obscene, menacing, or otherwise objectionable;
to harass, stalk, inconvenience, cause annoyance or needless anxiety to any person, impersonate any other person or act in a way which may reasonably be objectionable or is otherwise injurious to third parties;
in any way that breaches copyright, trademark, confidence, privacy or infringes the Intellectual Property Rights of others;
in any way that causes, or is likely to cause, the Services or access to the Services to be interrupted, damaged or impaired in any way;
in any way which generates, or may generate, unacceptable amounts of data traffic on O2’s network (as determined by O2 in its sole discretion from time to time);
in any way that infringes other users' use and enjoyment of the Services;
to initiate the sending of unsolicited advertising or promotional material including without limitation junk-mail for commercial or non-commercial reasons;
to send or transmit anything which consists of or contains software viruses, political campaigning, commercial solicitation, chain letters, mass mailings or any Spam;
in any way which may inhibit other users use or enjoyment of the Services or in any way which may cause damage to the reputation of O2 or any third party;
other than in accordance with the acceptable use policies of any connected networks or relevant third party service providers, or any other conditions notified to you prior to your use of the Services;
other than in accordance with the guidelines set out here.
unless expressly permitted by O2, for any purpose other than in relation to the O2 Litmus Community.

7.2 When using the Services you shall:
not use multiple log-ins for disruptive purposes or in a manner calculated to annoy others;
comply fully with any additional conditions displayed relating to particular content or Services which may apply and comply with all other instructions issued from time to time regarding use of any of the Services, Applications and Content;
not without our written consent (or, as applicable, the consent of the user providing the relevant Application), save as permitted by law, and shall not permit any other person to: (a) copy, modify, disassemble, reverse engineer, decompile or in any other way interfere with any software provided as part of the Services; or (b) create any new software partly or wholly based on the software; or (c) transfer, assign or sub-license your right to use the software or attempt to do so;
not remove, change or obscure any Intellectual Property Right notices displayed on the O2 Litmus Community or any other materials available from the O2 Litmus Community; and
not charge any user more than £30 per day to access and/or use your Application.

7.3 You must tell us immediately if anyone makes or threatens to make any claim or issue legal proceedings against you relating to your use of the Services. You will, at our request, immediately stop the act complained of. If we ask you to, you must confirm the details of the claim in writing. If you fail to stop the act or acts complained of we may suspend any or all of the Services.

8. CHARGES

8.1 Currently, O2 will not charge developers for use of the O2 Litmus Community but we reserve the right to charge for the Services (or part(s) of the Services) in the future and will give you advanced written notice of our intention to do so. Any supplementary services (such as testing or marketing support services) may be charged for separately by the third party providing those services to you and will be subject to the relevant third party’s terms and conditions.

8.2 Charges for access to or use of any Applications will be specified by the relevant developer. You shall comply with the guidelines set out here.

8.3 Where end-users pay to use and/or access your Application, you will receive 70% of the revenue received from that end-user after the deduction of VAT and our costs. You must specify whether you wish to receive your payment for Applications in Euros, US Dollars or Pounds Sterling. All Application purchases by end-users will be made in Pounds Sterling. Each time a currency exchange is required to pay you, HSBC Bank plc’s then current exchange rate and foreign currency exchange fee will apply. Where the payment you are entitled to receive is less than the HSBC Bank plc’s then current foreign currency exchange fee, you will not be paid until the payment due to you can first cover the amount of that fee. More details on the payment process (including timescales) are set out here.

8.4 Where end-users pay to use and/or access your Application but such payment is not collected by O2 (for whatever reason) you agree to pay to O2 the equivalent to the level of costs and revenue share that O2 is entitled to under clause 8.3 above by any such payment mechanism and/or method that O2 may require from time to time. Subject to your compliance with applicable data protection legislation, you agree that for the term of this Contract and for one (1) year following termination thereof you will keep records of all transactions where end-users pay to use and/or access your Application where such payment is not collected by O2.

8.5 In the event that O2 is interested in rolling out your Application on a wider commercial basis (i.e. outside of the O2 Litmus Community) we will contact you directly to discuss further. You acknowledge that O2 has no obligation to consider Applications for commercial launch and does not make any commitment to do so.

8.6 During the term of this Contract and for one (1) year following termination thereof, you agree to permit O2 (and its agents) to audit any associated records and documentation in your control or possession for the purpose of auditing your compliance with this Contract. In the event that such audit reveals a shortfall in the amount of costs and/or revenue share due to O2 under clauses 8.3 and 8.4 such shortfall shall forthwith be repaid to O2 by any such payment mechanism and/or method that O2 may require from time to time together with interest at a rate of 2% per annum above the base lending rate from time to time of Barclays Bank plc (such interest shall accrue from the due date until the date of payment and shall be calculated on a daily basis).

9. INTELLECTUAL PROPERTY RIGHTS

9.1 The word or mark "O2" however represented, including stylised representations, all associated logos and symbols, and combinations of any of the foregoing with another word or mark, are the trademarks of us or our group companies.

9.2 Intellectual Property Rights in the O2 Litmus Community and all Content (other than Applications and Contributions) are owned or licensed by O2. We expressly reserve all rights not expressly granted by us.

10. LIABILITY

10.1 We exclude all liability of any kind in respect of:
the accuracy, completeness or suitability for any purpose of any Services;
any Contributions, Applications or other material published by you or other users on the O2 Litmus Community;
your information, third party information or any other material on the Internet which can be accessed using the Services and we are not responsible in any way for any goods (including software) or services provided by third parties, advertised, sold or otherwise made available by means of the Services or on the Internet;
any failure to supply the Services if we are prevented by restrictions of a legal or regulatory nature from supplying the Services; and
any failure to do what we have promised because of something beyond our reasonable control such as technical failure, lightning, flood, exceptionally severe weather, fire or explosion, civil disorder, war, military operations, industrial disputes of any kind (including those involving our employees), natural or local emergency, the act or omission of other providers of fixed line or mobile phone or Internet services or the failure of any of their networks or apparatus, anything done by government or other competent authority.

10.2 We do not accept liability either in contract, tort (including negligence) or otherwise, for direct or indirect loss of profits, income, business or anticipated savings, nor for any indirect, incidental or consequential damages, including, without limitation, loss or destruction of data, or other information unless such losses were reasonably foreseeable to both of us when this Contract was entered into.

10.3 Our liability to you in contract, tort (including negligence) or otherwise in relation to this Contract is limited to the amount paid by O2 to you in accordance with section 8.3. However, we accept liability for death or personal injury caused by our negligence or any other liability that cannot be excluded or limited by law and the provisions of this section 10.3 do not apply to such liability.

10.4 Each provision of this Contract excluding or limiting liability operates separately. If any part is held by a court to be unreasonable or inapplicable, the other parts shall continue to apply.

11. INDEMNITY

11.1 You shall indemnify O2 against any claims, loss, damages, expenses or legal proceedings which are incurred by O2 as a result of:

any claims brought or threatened against us by a third party because the Services are used by you in breach of the provisions of this Contract;
your breach of any warranties set out in this Contract; and
any infringement or alleged infringement of any Intellectual Property Rights arising from your use of the Services and/or our hosting of your Contributions and/or Applications on the O2 Litmus Community.

We will notify you of any such claims or proceedings and keep you informed as to the progress of such claims or proceedings.

12. USE AND DISCLOSURE OF INFORMATION

12.1 You authorise us to use and disclose, in the UK and abroad, information about you, your use of the Services for the purposes of providing you with the Service or as required under law and in the ways described in our Privacy Policy located at http://www.o2.co.uk/termsconditions/o2privacypolicy.

13. CONFIDENTIALITY

13.1 You shall ensure that Confidential Information is only used for the purposes permitted under this Contract. Copies or reproductions of the Confidential Information shall not be permitted except to the extent reasonably necessary for the purposes of this Contract and all copies made shall remain the property of O2.

13.2 For the purpose of this clause 13, “Confidential Information” shall mean product, business, market, strategic or other information or data (including but not limited to information retained on all types of medium including written, diagrammatical, software or other storage medium) relating to O2, O2's customers or the business or affairs of O2 whether in writing, orally or by any other means, and whether or not that information is marked “confidential” excluding any information which: (a) at the time of receipt by you is in the public domain, or subsequently comes into the public domain through no fault of you or your personnel; (b) is lawfully received by you from a third party on an unrestricted basis; (c) is already known to you before receipt under this Contract; (d) is required by law, regulation or order of a competent authority to be disclosed by you provided that O2 is given reasonable advance notice of the intended disclosure and a reasonable opportunity to challenge the same; or (e) is disclosed by you with the prior written approval of O2 in accordance with the terms of such written approval.

13.3 You shall maintain Confidential Information in confidence and shall exercise in relation to the Confidential Information no lesser security measures and degree of care than those which you apply to your own Confidential Information, which you warrant as providing the protection required by this Contract against unauthorised disclosure, copying or use.

14. GENERAL

14.1 If we delay in acting upon a breach of this Contract by you, that delay will not be regarded as a waiver of the breach. If we do waive a breach of this Contract by you, that waiver is limited to the particular breach.

14.2 If any provision of this Contract is found to be illegal or unenforceable the remainder of this Contract will not be affected and the provision in question will be deemed modified to the extent necessary to make it enforceable.

14.3 You acknowledge and agree that in entering into this Contract you do not rely on, and shall have no remedy in respect of, any statement, representation, warranty or understanding (whether negligently or innocently made) of any person (whether party to these Terms or not) other than as expressly set out in these terms. Nothing in this clause shall, however, operate to limit or exclude any liability for fraud

14.4 A person who is not a party to this Contract has no rights under the Contracts (Rights of Third Parties) Act 1999 or otherwise to enforce any provision of this Contract.

14.5 This Contract is governed by English law and you and we submit to the non-exclusive jurisdiction of the English courts.