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WEB SITE TERMS OF USE

Introduction

Welcome to Virgin Mobile’s Internet web site (the "Site").  This Site contains text, images, audio clips, video clips, software and other materials (collectively, the "Content"), provided by Virgin Mobile for informational purposes only. By accessing the Site or downloading any Content, you agree to be bound by the Terms of Use set out below ("Terms of Use"). If you do not agree to these Terms of Use, do not access the Site or any Content.

Please note that we reserve the right, at our discretion, to change, modify, add, or remove portions of these Terms of Use at any time. Please check periodically for changes. Your continued use of the Site following the posting of any changes to these Terms of Use will mean you accept those changes.

PRIVACY

Virgin Mobile has long been committed to maintaining the accuracy, confidentiality, security and privacy of your personal information. We consider your personal information to be information about you as an identifiable individual that is protected by law.

We’d like you to better understand how your personal information is collected, used and disclosed when you access and use our Site:

(a) Transactions and inquiries: You may be asked for personal information, such as your name, address or e-mail address, current phone number, payment information and permission to conduct a credit inquiry when you order a product or service online.

(b) Cookies: the Site uses cookies (small text files that contain a unique identifier that identifies your browser – but not you- each time you visit our Site). Cookies tell us which pages of our Site are visited and by how many people. This allows us to understand what information is useful and what might need improvement. You can manage your cookie preferences on your web browser, but note that if you refuse to use them, some features of the Site might not work.

(c) Quality assurance: Virgin Mobile may capture, replay and analyze details of your Site visits to find site errors or issues and understand the impact that transaction failures have on business processes and to improve the operation of the Site.

(d) Contests and promotions: You may choose to participate in the contests or promotions offered by Virgin Mobile intended to increase awareness of our products and services. When entering into certain contests or promotions, Virgin Mobile may request your permission use your personal information to contact you about products or services you may find of interest.

For additional information on how your personal information is collected, used and disclosed by Virgin Mobile in connection with your use of this Site, please consult our Privacy Policy available at virginmobile.ca/privacy, where you will also find the answers to many frequently asked questions.

REGISTRATION, ACCOUNTS AND PASSWORDS

Certain of the features made available on the Site may require registration or subscription and the setting up of an account. Should you choose to register or subscribe for an account, you agree to provide accurate and current information about during the registration or subscription process, and to promptly update such information as necessary to ensure that it is kept accurate and complete. You are responsible for protecting your account(s) and password(s) and for all use of your account by yourself and other users (authorized or not). You must notify Virgin Mobile immediately should you suspect unauthorized use of your account. You agree that Virgin Mobile may rely on any changes you make to your account (such as requested changes to your Virgin Mobile services) and shall not be responsible for any errors or omissions in any changes you incorrectly request through your account. Any purchases of products and services you make through your Virgin Mobile account accessed through the Site are subject to the Terms of Use applicable to such purchases. Virgin Mobile shall not be responsible or liable, directly or indirectly, in any way for any loss or damage of any kind incurred as a result of, or in connection with, your failure to comply with this Section.

RESTRICTIONS ON USE OF MATERIALS

All Content accessible through this Site is protected by copyright. The Content is: Copyright © Virgin Mobile its affiliates and/or licensors. All rights reserved. Such Content is protected by Canadian and worldwide copyright laws and treaty provisions. Virgin Mobile grants you a limited non-exclusive, non-transferable license to use and display on your computer or other electronic access device, the Content for your own personal and non-commercial use only, provided that you do not modify the Content and that you maintain all copyright and other proprietary notices. Except as provided herein, you agree not to reproduce, make derivative works of, retransmit, distribute, sell, publish, communicate, broadcast or otherwise make available any of the Content obtained through the Site, including without limitation, by caching, framing or similar means, without the prior written consent of the respective copyright owner of such Content.

Trademarks

The "Virgin" name, the Virgin signature logo, the "Virgin Mobile" name, the Virgin Mobile logo, and the Virgin Festival logo are trademarks and registered trademarks of Virgin Enterprises Ltd. and used under license by Virgin Mobile Canada, a division of Bell Mobility Inc. Soundbar, Studio V, and other names and logos are also trademarks and registered trademarks of Bell Mobility Inc. Any use of Bell Mobility Inc. or Virgin Enterprises Ltd. trademarks without prior written authorization is expressly prohibited.

Use of the Site

In consideration of the availability, and your use, of the Site, you agree to comply with all applicable laws and regulations and these Terms of Use when using the Site. You acknowledge that Virgin Mobile may investigate any violations of law and may cooperate with law enforcement authorities in prosecuting users in this regard.

You are prohibited from:

(a) using, enabling, facilitating, or permitting the use of the Site for an illegal purpose, criminal or civil offence, intellectual property infringement, harassment (including disruptive, intimidating, annoying or offensive calls/transmissions), or in a manner that would breach any law, regulation or the policies of any Internet host, or cause interference with Virgin Mobile’s network operations (including preventing a fair and proportionate use by others);

(b) using or permitting the use of the Site without reading and accepting (or in contravention of) the terms of any separate license agreement or terms of use provided to you by Virgin Mobile for the use of Software;

(c) enabling, facilitating or permitting the transmission of unsolicited messages such as spamming or phishing;

(d) uploading or downloading, making available, transmitting, posting, publishing, disseminating, receiving, retrieving, storing, linking to or otherwise reproducing, offering, distributing, enabling or providing access to information, software, content, files or other material which: (i) is confidential or protected by copyright or other intellectual property rights without prior authorization of the rights holder(s); (ii) is defamatory, discriminatory, violent, obscene, child pornography or hate propaganda; (iii) constitutes invasion of privacy, impersonation, forging, appropriation of identity or unauthorized linking or framing; or (iv) is designed to assist users in defeating technological protection measures (like geoblocks, registration and any other anti-theft mechanisms) or in the fraudulent use of telecommunications or broadcasting services;

(e) using the Site for anything other than private, personal, family or household use (such as reselling, remarketing, transferring, sharing or receiving any charge or other benefit for the use of any Virgin Mobile product or service);

(f) adapting, reproducing, translating, modifying, decompiling, disassembling, reverse engineering or otherwise interfering with any software, applications or programs used in connection with the Site (whether owned by or used under licence to Virgin Mobile) for any purpose including “testing” or research purposes; or modifying, altering, or defacing any of the trade-marks, or other intellectual property made available through the Site or using any intellectual property except for the express purpose for which such intellectual property is made available to you through the Site;

(g) posting or transmitting any information or software containing a virus, “cancelbot”, “Trojan horse”, “worm” or other harmful or disruptive component or committing any act which may compromise the security of your Internet host in any way (including analyzing or penetrating a host’s security mechanisms); and

(h) using harassing or abusive language or actions, whether verbal, written or otherwise, directed at Virgin Mobile employees, suppliers, agents and representatives.

You are solely responsible for ensuring that your systems are able to use the Site and IT IS RECOMMENDED THAT YOU USE AND UPDATE COMMERCIAL ANTI-VIRUS, ANTI-SPYWARE AND FIREWALL SOFTWARE ON YOUR SYSTEMS THAT ACCESS THE SITE.

RESPONSIBILITY FOR MINORS

In cases where you have authorized a minor to use the Site, you recognize that you are fully responsible for: (a) the online conduct of such minor; (b) controlling the minor’s access to and use of the Site; and (c) the consequences of any misuse by the minor. You acknowledge that some of the areas of the Site may contain material that is inappropriate for minors.

FORUMS AND CONTENT SUBMISSIONS

By uploading materials to any chat board or forum available on the Site ( “Forums”) or otherwise submitting any materials to us on the Site (collectively such materials and content being “User Content”), you automatically grant (or warrant that the owner of such User Content expressly grants) Virgin Mobile a world-wide, perpetual, royalty-free, irrevocable and non-exclusive right and license to use, copy, adapt, transmit, communicate, publicly display and perform, distribute and create compilations and derivative works from such User Content, for the purposes of publishing and promoting such User Content in connection with the Forum through which the User Content was submitted or generated, and for all promotions thereof, as well as for any other purposes permitted under its Privacy Policy, all without attribution or compensation to you. Such license shall apply with respect to any form, media, or technology now known or later developed. In addition, you warrant that all “moral rights” in such User Content has been waived.

Virgin Mobile is not responsible for any loss, damage, or corruption that may occur to your User Content and Virgin Mobile bears no responsibility for maintaining the accuracy or confidentiality of your User Content.

If you are a minor, you must have permission from your parent or guardian to upload any User Content to a Forum. Virgin Mobile may request a parent’s or guardian’s email address from anyone who uploads any User Content to a Forum for the purpose of verifying with the parent or guardian that he/she has in fact given permission for such uploading. In the event that User Content is uploaded without permission, any or all uploaded User Content may be removed immediately and without notice to you.

When participating in a Forum, never assume that people are who they say they are, know what they say they know, or are affiliated with whom they say they are affiliated. Virgin Mobile cannot be responsible for the content or accuracy of any information, and will not be responsible for any reliance or decisions made based on such information. When using a Forum, you may not post, transmit, link to, or otherwise distribute any information, materials or content that do not generally pertain to the designated topic or theme of the particular Forum. Use of a Forum for commercial purposes of any kind is strictly prohibited.

Virgin Mobile may at any time and without notice remove any User Content and may in its sole discretion refuse to delete any User Content.

SUBMISSION OF IDEAS AND/OR SUGGESTIONS

Virgin Mobile is always improving its websites and products and services and developing new features. If you have ideas and/or suggestions regarding improvements or additions, we would like to hear them – but any submission will be subject to these Terms of Use. UNDER NO CIRCUMSTANCES SHALL ANY DISCLOSURE OF ANY IDEA AND/OR SUGGESTION OR RELATED MATERIAL TO VIRGIN MOBILE BE SUBJECT TO ANY OBLIGATION OF CONFIDENTIALITY OR EXPECTATION OF COMPENSATION OR ATTRIBUTION TO YOU. BY SUBMITTING THE IDEA AND/OR SUGGESTION OR ANY RELATED MATERIAL TO VIRGIN MOBILE, YOU ARE WAIVING ANY AND ALL RIGHTS THAT YOU MAY HAVE IN THE IDEA AND/OR SUGGESTION OR ANY RELATED MATERIAL AND ARE REPRESENTING AND WARRANTING TO VIRGIN MOBILE THAT THE IDEA AND/OR SUGGESTION OR ANY RELATED MATERIAL ARE WHOLLY ORIGINAL WITH YOU, THAT NO ONE ELSE HAS ANY RIGHTS IN THE IDEA AND/OR SUGGESTION OR ANY RELATED MATERIAL AND THAT VIRGIN MOBILE IS FREE TO IMPLEMENT THE IDEA AND/OR SUGGESTION AND TO USE THE RELATED MATERIAL IF IT SO DESIRES, AS PROVIDED OR AS MODIFIED BY VIRGIN MOBILE, WITHOUT OBTAINING PERMISSION OR LICENSE FROM ANY THIRD PARTY.

Disclaimers

YOU EXPRESSLY UNDERSTAND AND AGREE THAT: (A) THE SITE IS PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS AND THAT VIRGIN MOBILE MAKES NO WARRANTIES, REPRESENTATIONS OR CONDITIONS (AS USED IN THIS SECTION, “WARRANTIES”) OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT AND THAT ANY SUCH WARRANTIES ARE HEREBY EXPRESSLY DISCLAIMED, AND (B) VIRGIN MOBILE SPECIFICALLY MAKES NO WARRANTIES THAT THE VIRGIN MOBILE SITE, INCLUDING ANY CONTENT, INFORMATION, PRODUCTS OR SERVICES OBTAINED FROM OR THROUGH THE USE OF THE SITE, WILL BE PROVIDED ON AN UNINTERRUPTED, TIMELY, SECURE OR ERROR-FREE BASIS OR THAT SUCH PRODUCT OR SERVICES OR THE RESULTS DERIVED THEREFROM WILL MEET YOUR REQUIREMENTS OR EXPECTATIONS. NOTHING IN THE CONTENT SHALL AMEND OR SUPPLEMENT ANY CONTRACT YOU MAY HAVE WITH VIRGIN MOBILE FOR ANY PRODUCTS OR SERVICES.

MONITORING

You acknowledge that Virgin Mobile has no obligation to monitor the Site or Content accessible, transmitted through or posted to the Site. You agree that Virgin Mobile has the right to monitor the use of the Site and Content electronically from time to time and to disclose any information necessary to: (a) satisfy any legal, regulatory or other government request; (b) to operate the Site properly; or (c) to protect itself, other users of the Site in accordance with the Privacy Policy.

Software Tools 

The Site may provide you with access to software Content ("Software"). Virgin Mobile reserves the right periodically to update or change the Software remotely or otherwise. You may use the Software only in connection with the Site and for no other purpose. The Software may be subject to an end user license agreement (“EULA”).  Your use of the Software is subject to any such EULA and you agree to abide by the terms of such EULA in respect of your use of the Software. For Software not accompanied by a EULA, you are hereby granted a revocable, non-exclusive, non-transferable license by Virgin Mobile or its licensors to use the Software (and any corrections, updates and upgrades thereto) solely in connection with your use of the Site. You may not make any copies of the Software. You agree that the Software is confidential information of Virgin Mobile or its licensors and that you will not disclose or use the Software except as expressly permitted herein. You further agree that Virgin Mobile, including its suppliers, shall not be responsible or liable, directly or indirectly, in any way for any loss or damage of any kind incurred as a result of, or in connection with your use of, or reliance on, the Software, including the failure of the Software to meet your needs, standards, expectations or specifications.

CONTENT LINKED TO A VIRGIN MOBILE SITE

Please exercise discretion while browsing the Internet. Please note that certain links on the Site may take you to other websites. Virgin Mobile provides these links only as a convenience and not as an endorsement by Virgin Mobile. These linked sites are not necessarily under the control of Virgin Mobile. If you decide to visit any linked site, you do so at your own risk and it is your responsibility to take all protective measures to guard against viruses and other destructive elements. Virgin Mobile is not responsible for the content of any such linked sites or any other web page which is not part of the Site and under Virgin Mobile’s control. Unless otherwise expressly provided, Virgin Mobile makes no representation or warranty regarding, and does not endorse, any linked site or the information, products or services appearing thereon. Accordingly, you agree that Virgin Mobile will not be responsible or liable in any way for the accuracy, relevancy, copyright compliance, legality, or decency of material contained in any site linked from the Site.

INDEMNIFICATION AND LIMITATION OF LIABILITY

You agree to defend, indemnify and hold harmless each of Virgin Mobile, its affiliates and licensors and each of their respective officers, directors, employees and agents, including all third parties mentioned on the Site, from and against any and all claims, actions or demands, including without limitation reasonable legal and accounting fees, resulting from or related to: (a) your breach of any of these Terms of Use; (b) your access to or use of the Site or Content; or (c) your use or reliance on, or publication, communication or distribution of anything on or from the Site. You shall use your best efforts to cooperate with us in the defense of any claim. We reserve the right, at our own expense, to assume the exclusive defense and control of any matter otherwise subject to indemnification by you.

YOU EXPRESSLY UNDERSTAND AND AGREE THAT IN NO EVENT SHALL VIRGIN MOBILE, INCLUDING ITS AFFILIATES AND LICENSORS, BE LIABLE FOR ANY DAMAGES WHATSOEVER, INCLUDING ANY DIRECT, INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL OR EXEMPLARY DAMAGES, AND ANY DAMAGES FOR LOSS OF PROFITS, SAVINGS, GOODWILL OR OTHER INTANGIBLE LOSSES, REGARDLESS OF WHETHER VIRGIN MOBILE HAD BEEN ADVISED OF OR COULD HAVE FORESEEN THE POSSIBILITY OF SUCH DAMAGES, ARISING OUT OF OR IN CONNECTION WITH: (A) THE USE, INABILITY TO USE OR PERFORMANCE OF THE SITE, (B) ANY UNAUTHORIZED ACCESS TO OR MODIFICATION TO ANY OF YOUR USER CONTENT, OR (C) ANY OTHER MATTER RELATING TO THE SITE. You expressly acknowledge that Virgin Mobile has entered into these Terms of Use, and has and will make the Site and Content available to you in reliance upon the limitations and exclusions of liability and the disclaimers set forth herein, and that the same form an essential basis of the bargain between you and Virgin Mobile. You expressly agree that the limitations and exclusions of liability and the disclaimers set forth herein will survive, and continue to apply in the case of, a fundamental breach or breaches, the failure of essential purpose of contract, the failure of any exclusive remedy or termination of this agreement.

GOVERNING LAW/JURISDICTIONAL ISSUES

The Site is controlled, operated and administered by Virgin Mobile from its offices within Canada. Virgin Mobile makes no representation or warranty that the Site is appropriate or available for use at any locations outside Canada. If you access the Site from outside Canada, you are responsible for compliance with all applicable laws. These Terms of Use shall be interpreted, construed and governed by the laws in force in the Province of Ontario, Canada, without reference to its conflict of laws principles. Subject to the Arbitration and Actions Section below, each party hereby agrees to submit to the jurisdiction of the courts of the Province of Ontario and to waive any objections based upon venue. The United Nations Convention on Contracts for the International Sale of Goods does not apply to these Terms of Use.

Some products and services referred to on the Site may not be available in all parts of Virgin Mobile's territory. Contact Virgin Mobile’s customer service department for information regarding the products and services which may be available to you in your area.

ARBITRATION AND ACTIONS

Except where prohibited by applicable law, any controversy, claim or dispute arising out of or relating to these Terms of Use, your use of the Site or the relationship which results from these Terms of Use, including without limitation, the performance, breach, enforcement, existence or validity of the matters provided for in these Terms of Use which cannot be amicably resolved, even if only one of the parties declares that there is a difference (collectively, a “Claim”), will be referred to and finally settled (to the exclusion of the courts) by private and confidential binding arbitration before a single arbitrator held in Toronto, Ontario in English and governed by Ontario law pursuant to the Arbitration Act, 1991 (Ontario), as amended, replaced or re-enacted from time to time. The arbitrator shall be a person who is legally trained and who has experience in the information technology field in Canada and is independent of either party. Any such Claim shall be arbitrated on an individual basis, and shall not be consolidated in any arbitration with any claim, controversy or dispute of any other party. You agree to waive any right you may have to commence or participate in any class action against us related to any Claim and, where applicable, you also agree to opt out of any class proceedings against us. Notwithstanding the foregoing, we reserve the right to pursue the protection of intellectual property rights and confidential information through injunctive or other equitable relief through the courts.

TERMINATION

You acknowledge and agree that Virgin Mobile, in its sole and absolute discretion, may, without notice to you, suspend or terminate your account or your use of, or access to, the Site, and remove and discard any User Content, for any reason, including where Virgin Mobile believes that you have violated any of these Terms of Use. You further agree that Virgin Mobile shall not be liable to you or to any other person as a result of any such suspension or termination. If you are dissatisfied with the Site or with any terms, conditions, rules, policies, guidelines, or practices of Virgin Mobile in operating the Site, your sole and exclusive remedy is to discontinue using the Site.

Miscellaneous

These Terms of Use, the Virgin Mobile Privacy Policy, and other documents referenced herein, constitute the entire agreement between Virgin Mobile and you with respect to your use of this Site. Virgin Mobile's failure to insist upon or enforce strict performance of any provision of these Terms of Use shall not be construed as a waiver of any provision or right. If any of the Terms of Use is determined to be void, invalid or otherwise unenforceable by a court of competent jurisdiction, such determination shall not affect the remaining provisions hereof. The parties have required that these Terms of Use and all related documents be drawn up in English. Les parties ont demandé que cette convention ainsi que tous les documents qui s'y rattachent soient rédigés en anglais.