Terms and Conditions for Broadcast SIM Services Ltd. (BSS)
The following terms (in singular or plural form) as used in these Terms and Conditions shall have the following meanings:
A status the SIM card reaches when the customer activates the SIM card or when the threshold of the maximum kB for testing is passed or when the Customer has not requested the activation within SIM Activation number of days after the date of the purchase of the SIM card.
The agreement between the Customer and BSS consisting of the Agreement, Annexes, these Terms and Conditions and any applicable order, which govern the relationship between BSS and the Customer.
All information disclosed by a Party to the other Party during the Term (whether in writing or orally) including the existence and the contents of these Terms and Conditions or any Order, any information
designated as confidential by either Party and all other information which relates to the business, affairs, customers, products, developments, trade secrets, know-how and personnel of either Party that a Party knows or should reasonably know is regarded as confidential by the other Party.
The portion of the mobile telecommunications services tied to a specific piece of peripheral equipment identified by its SIM card commonly referred to as a “line”.
The compan(y)(ies) or legal entit(y)(ies) with whom BSS enters the Agreement and/or to whom the Services are provided.
The Customer’s certified device that contains a SIM Card, including, without limitation, cellular terminals and GPRS modules.
Rate plan as stated in Client Account Agreement that will be deployed as standard.
The portion of the mobile telecommunications services tied to a specific piece of peripheral equipment identified by its SIM card commonly referred to as a “line”.
A fee, as calculated for each Connection, terminated by the Customer during the Minimum Term of a Connection indicated in these Terms and Conditions, times the remaining months for that Minimum Term.
The date when the first SIM card reaches the status actually used.
An actual user of the Service.
The minimum number of SIM cards ordered with the first order.
A period of 60 months as stated in the Agreement calculated after the Effective Date, unless agreed otherwise in the Agreement.
The management tool with the goal to manage SIM cards and receive information about the Service reporting. The functionality is subject to confidentiality.
A period of months, stated in Client Account Agreement, an individual SIM card has to be active on the network. The Minimum Term starts when the SIM card reaches the status Actually Used.
Unless the context indicates that a full calendar month is intended, a continuous period until the same date in the following calendar month.
Recurring monthly fee as stated in Client Account Agreement / Section 3 to be paid by the Customer to BSS.
The EDGE, GSM, GPRS and/or other telecommunication networks in the Territory only in so far as used to provide the agreed BSS Services to the Customer.
An order for Services placed by an authorized representative of the Customer under these Terms and Conditions.
BSS or the Customer / BSS and the Customer jointly.
All services listed in the relevant Annex to be provided in the Territories by BSS to the Customer.
The number of days as stated in Client Account Agreement upon which the SIM card will have the status Actually Used.
A microchip card that is required to use a Connection, making use of applicable standard(s) for mobile telecommunication or systems operating with it.
The minimum number of SIM cards ordered per order
The Terms and Conditions for BSS M2M Solution contained herein. Territory The agreed countries as indicated in http://www.broadcastsim.com/coverage.html, for which the Services may be ordered by the Customer.
Trade names, trademarks, logos or other identifying product or service marks used by a Party.
Monday through Friday, with the exception of Dutch public holidays and/or as specifically indicated in an Annex or an Order.
A period of every 365 days following the Effective Date.
The portion of the mobile telecommunications services tied to a specific piece of peripheral equipment identified by its SIM card commonly referred to as a “line”.
- BSS agrees to provide the Services specified in Orders submitted by the Customer and accepted by BSS. BSS will provide such Services in compliance with these Terms and Conditions. The provision by BSS of each (separate) Service and Customer Hardware will be for the Customer’s use in the Territory as indicated in the relevant Annex or Order (as applicable).
- BSS shall provide each Service from the commencement date(s) as agreed upon in the Order.
- The Customer and the Customer’s affiliates shall be prohibited from transferring the Connections to any third party without the written permission of BSS. The Customer shall not be allowed to grant a right to use the Connections to End-Users other than within the scope of the Agreement. The Customer shall at any time remain responsible for the use of the Connections or the SIM Cards by third parties and End-Users.
BSS Control Centre
- The Customer shall place the Orders with BSS in writing (email included). BSS is not obligated to check the Orders.
- The Parties agree that the legal relationships between them will not be subject to any stipulation comprised in article 6:227 b, first paragraph and article 6:227 c or any other similar arrangement based on (the E-commerce) Directive 2000/31/EG (PbEG L178 of July 17th, 2000).
- In case the agreement is terminated and the Minimum Term of a SIM card has not expired, BSS will perform the Service until the end of the Minimum Term of the last SIM card, Customer is obliged to pay until the end of the Minimum Term of the SIM card. Customer has the right to settle amounts due for the Minimum Term of the non-expired SIM cards at once. BSS will calculate the fees due at request of Customer, according to art. 15 of the Terms and Conditions.
3. General Provisions
Relationship between Parties
- The Customer agrees that it will purchase the Services (or services materially the same as the services) exclusively from BSS within the Territory (as set forth in http://www.broadcastsim.com/coverage.html) until the Minimum Commitment has been reached, as set forth in Client Account Agreement. If Customer breaches this exclusivity at any time during the duration of this Agreement, article 15 of these Terms and Conditions will apply.
- No rights may be derived from these Terms and Conditions to act legally on behalf of the other Party, unless the Parties explicitly agree otherwise in writing. These Terms and Conditions are not intended to and shall not be interpreted as giving rise to any corporation, association or partnership resulting from the conclusion or performance of these Terms and Conditions.
- These Terms and Conditions are not for the purpose of any transfer of ownership of hardware or equipment.
- BSS may sub-contract the performance of any of its obligations under these Terms and Conditions. Notwithstanding any sub-contracted obligation: (i) BSS is responsible to the Customer for the performance of the Services and the observance of the obligations under these Terms and Conditions and (ii) BSS will remain the Customer’s single point of contact for all matters related to the Services, unless agreed upon otherwise in writing.
- In the event of, and only to the extent of, any conflict between the various documents in these Terms and Conditions, the following will be the order of precedence:
• First, the Client Account Agreement; then
• The Terms and Conditions; and finally
• The Account Modification Request (Client Email requests to extend or modify account terms.)
If a particular provision in a lower ranked document specifically states that it overrides or supersedes a particular article of a higher ranked document, said lower ranked provision shall prevail.
- If one or more provisions of these Terms and Conditions are wholly or partly invalidated, these Terms and Conditions shall remain in force without the invalid provisions, unless, given its content and purpose, these Terms and Conditions are inextricably bound to the invalid provisions. In that case, the Parties undertake to replace invalid or non-binding provisions as soon as possible with valid provisions, the meaning of which is as close as possible to the invalid or non-binding provisions.
- Except as otherwise provided in these Terms and Conditions, no amendment to these Terms and Conditions shall have any force or effect unless it is in writing and signed by the duly authorized representative of both Parties. The waiver of a breach of any term or condition of these Terms and Conditions will not constitute the waiver of any other breach of the same or any other term. To be enforceable, a waiver must be in writing and signed by a duly authorized representative of the waiving Party.
- These Terms and Conditions shall apply to the entire legal relationship between BSS and Customer, including all offerings and agreements wherein BSS delivers Services to the Customer. The applicability of Customer’s terms and conditions, or any other general or special terms or conditions is expressly rejected and shall not apply.
- Neither Party will have the right to assign an Order without the prior written consent of the other Party, which consent shall not be unreasonably withheld. Contrary to the foregoing, BSS is entitled to assign any rights or obligations pursuant to the Agreement without the prior written consent of the Customer if said rights and obligations are assigned to BSS’s parent company or any other company within the BSS group of companies.
- These Terms and Conditions are in the English language only and English will be controlling in all respects. All translations of these Terms and Conditions to any other language shall be for convenience only and shall not be binding upon the Parties. All communications and notices to be made or given pursuant to these Terms and Conditions shall be in the English language.
- The titles and headings in these Terms and Conditions are for reference only and are not meant to create any limitation or expansion to the meaning of any provision.
4. Standards Compliance, Network Developments and Network Maintenance
- BSS will use reasonable efforts to ensure the provision of Services in accordance with applicable standards and legislation. BSS shall give notice to the Customer if, as a result of (a change of) applicable standards and legislation, BSS is unable to provide the Services without the assistance of the Customer. The notice shall give details of the issue concerned and the activities to be undertaken by the Customer in order to ensure that the Services are provided in accordance with applicable standards and legislation. If the Customer, for whatever reason, is unable or unwilling to provide the required assistance, (as an alternative to any applicable termination rights under these Terms and Conditions) the Parties may re-negotiate the (relevant parts of the) Terms and Conditions. During such negotiations, the Customer shall not oblige BSS to comply with the terms of these Terms and Conditions which conflict with the applicable standards and legislation.
- A Network may be modified at any time. BSS will inform the Customer in a timely manner, unless BSS is not reasonably able to do so, about:
• Modifications to the technical properties and possibilities of a Network; and
• Modifications to the geographical converge of a Network
insofar as any modification has a material impact on the Services or for the Customer Hardware.
- The Parties will cooperate with each other to provide information needed to ensure that the Services are maintained and continue to function properly.
- BSS does not warrant that the Services will be uninterrupted or error free nor does it make any warranty as to the results that may be obtained from the use of the Services. Except for the foregoing, the Services are provided “as is” and BSS disclaims all warranties, express or implied, including, but not limited to, implied warranties of merchantability and fitness for a particular purpose and non-infringement. BSS shall endeavour to transfer to the Customer the benefit of any warranty or guarantee given to BSS by BSS’s supplier of the Services.
- BSS will provide the Customer with technical support services in accordance with BSS’s current standard support services terms and conditions, the current version of which is attached as Annex 2. BSS agrees that any changes to Annex 2 will not degrade support levels below services levels as of the Effective Date.
- Customer agrees to use the Mobile Station International Subscriber Directory Number (MSISDN) that is assigned to the Connection in compliance with the usage assigned to this number by European Telecom law, “Telephony number plan and ISDN-services”.
5. Data Protection
- When processing data (including personal information and traffic data) relating to the Customer, or its End-Users for the purpose of service provisioning or other commercial purposes, BSS will duly observe the applicable laws and regulations governing the protection of privacy.
- BSS shall be exclusively entitled to the data referred to in Article 5(1) and may process the data for the purposes of detecting and combating fraud, to check adherence to the acceptable use policy referred to in Article 6.9 and to derive general information from the Customer’s or End-User’s traffic figures for various (commercial or non-commercial) purposes and may also forward the data to third parties – provided such data does not trace or can not be linked to a customer of Customer or to an End-User, and if so, is anonymized, whether or not located outside the territory of the European Union, whether or not for reasons of executing the obligations under these Terms and Conditions and for arranging invoices and reporting according to these Terms and Conditions, all subject to the applicable mandatory statutory restrictions. To this extent, the Customer shall grant BSS access to the data and allow BSS to have the data processed by itself or by such third parties for such purposes and, to the extent applicable, shall transfer all rights to the data as referred to in Article 5(1) to BSS, subject to the restrictions in this clause. If, due to applicable law, the permission of each End-User involved has to also be given in this respect, the Customer guarantees it shall do its best efforts to be authorized to represent the End-User in this matter and the Customer agrees to indemnify BSS for any claim of an End-User alleging that the Customer did not have the right to consent to the processing of such End-User’s personal or traffic data under this Article 5(2).
6. Suspension of Services and Use of Content
Suspension of Services
- BSS shall have the right to suspend the relevant Service wholly or in part if: (i) the Customer fails to meet any obligation towards BSS under these Terms and Conditions, (ii) BSS notifies the Customer of such failure and (iii) Customer does not remedy such failure within a reasonable amount of time, with a maximum of 14 days, given the nature of such failure. The Service will be resumed when the Customer resumes its obligations to BSS.
- BSS shall have the right to suspend a Service in full or in part for the purpose of routine maintenance, provided that such maintenance does not materially disrupt the Services. BSS shall keep all such maintenance to a minimum and will use reasonable efforts to notify the Customer, in advance, of such maintenance activities including details regarding the Services and locations that may be impacted.
- BSS is also authorized to suspend the services wholly or in part based on provisions elsewhere in these General Terms and Conditions and in the law. BSS is entitled to suspend the services wholly or in part:
• if the Customer repeatedly acts in such a way that this behaviour can be seen as harassment, stalking, threat or obscene towards third parties. However BSS will not do this before it has requested the Customer, on the basis of an investigation into the matter, to cease such behaviour and refrain from it in the future and the Customer has not complied with this request; or:
• if BSS receives a formal request to that effect from the authorities.
- The obligation to pay charges shall continue to exist throughout the period of suspension of services in accordance with the preceding paragraphs. The suspension will be lifted if the Customer has fulfilled all his obligations within a period specified by BSS. Reconnection costs may be charged for lifting the suspension.
Use of Content
- The Customer will duly notify End-Users that they are not allowed to use the Services to perform illegal activities or use the Services in any manner that constitutes a criminal offence or an unlawful act in relation to BSS or third parties, including but not limited to, a possible breach of any intellectual property rights held by a third party. Customer will also duly inform End-Users that they may not send unsolicited messages to other users of a Network.
- The Customer shall indemnify BSS and hold BSS harmless from all claims and damages, arising out of a third party claim as a result of the content, publication or use of the Services by End–Users constituting a criminal offence or an unlawful act in relation to BSS or third parties.
- The volume or rate of messages could be restricted and delay or refusal to forward messages promptly will be part of the Services due to the nature of the service or the technology used, or in order to reasonably prevent the transmission of large volumes of unsolicited messages.
- The Customer acknowledges and agrees that the use of content or information services and the possibility to send messages may be blocked, temporarily or otherwise, due to measures taken by mobile network operators in order to prevent the (further) dissemination of information that constitutes a criminal offence or may be unlawful in relation to third parties.
- The Customer shall adhere to the acceptable use policy as prescribed by BSS’s supplier of the Services and as set forth in Annex 4.
7. SIM Cards
- The risk of loss, theft, damage, usage, misuse and abuse of SIM cards is transferred from BSS to the Customer at the moment of shipment to the Customer's premises or when shipped to a destination decided by the Customer.
- Unless otherwise agreed in writing, the ownership of the SIM card shall either be with BSS or the relevant mobile network operator regarding the Network the SIM card is connected to.
- The Customer shall properly protect the SIM card against unauthorized use, theft or damage. The SIM card security codes must not be disclosed to unauthorized third parties and may not be kept on or in the immediate vicinity of the SIM card. The Customer shall obey any reasonable instructions coming from BSS or its suppliers, related to the use of a SIM card, in case of alleged fraud, possible misuse etc.
- BSS shall have the right to exchange a SIM card issued to the Customer for a new SIM card if the technical components of SIM cards are modified, or if the technical components of a particular SIM card become outdated. BSS also has the right to modify, remotely or by another method, the technical components or settings of a SIM card issued to the Customer.
- When the Agreement is partly terminated with respect to a Connection and ownership of the SIM Card has not yet transferred to the Customer, the SIM Card related to this Connection must be returned to BSS or destroyed by or on behalf of the Customer as indicated by BSS per Territory.
- BSS does not warrant that the SIM Cards will be uninterrupted or error free nor does it make any warranty as to the results that may be obtained from the use of the SIM Cards. Except for the foregoing, the SIM Cards are provided “as is” and BSS disclaims all warranties, express or implied, including, but not limited to, implied warranties of merchantability and fitness for a particular purpose and non-infringement.
- Customer has the obligation to order the SIM Cards in quantities no smaller than the First SIM Order for the first order, and minimum of SIM Order SIM cards for sequential orders. The quantities for the First SIM Order and the SIM Order are in Client Account Agreement. Ordering SIM cards has to be done via (written) purchase Order. Delivery time of a SIM card can take up to 4 (four) weeks for SIM cards with an existing profile. In case the Customer wants to receive existing SIM Cards within 4 (four) weeks, the Customer has to provide a timely forecast to BSS. Based on the forecast the SIM Cards will be made available based on a best effort obligation. When the Customer does not order the number of SIM cards mentioned in the forecast for reasons attributable to Customer, Customer shall reimburse BSS for the remaining number of SIM Cards. SIM cards with a new profile have a longer delivery time. The delivery time of SIM cards with a new profile will be discussed between Customer and BSS.
- If during the production process the SIM card cannot be activated as a result of Dead On Arrival (DOA), BSS will replace the SIM card free of charge. BSS must be notified within one month after the DOA has been detected. If the SIM card malfunctions after the production process, BSS can replace the SIM card for a fee issuing the new SIM card.
- In case a SIM card is continuously active on a third party mobile network, and if such behaviour is not acceptable to the associated network operator and/or local regulator, BSS shall inform Customer of this fact. If the problem cannot be remedied by BSS within a reasonable period of time, the price plan will no longer apply and a solution will be found on a country by country and case by case basis. Parties acknowledge that BSS cannot bear the risk of this disconnection. For the avoidance of any doubt, a continuous roaming SIM card means a SIM card that roams, or is active on the same third party mobile network, all the time that the mobile device is active.
8. Customer Hardware
- The Customer shall be responsible for obtaining and maintaining any Customer Hardware and any other equipment and ancillary services needed to connect to, access or otherwise use the Services.
- The Customer shall insure that the Customer Hardware shall meet the applicable legal requirements. The consequences, including possible financial consequences, of using devices that do not meet these requirements are at the expense and risk of the Customer. Customer Hardware can have different functionalities, which can have implications for the use of options of Services. BSS may decide that specific Customer Hardware may only be used in combination with a specific Service Concept.
- The Customer shall also be responsible for maintaining the security of the Customer Hardware, Customer account, passwords (including but not limited to administrative and user passwords) and files, and the Customer shall be fully responsible for all uses of Services (and all associated Charges), with or without Customer’s knowledge or consent and whether or not authorized by Customer.
- All Hardware to be used with a SIM card must be certified. BSS requires that the modem in the device is GCF certified, and will inform the Customer about further requirements regarding the device software implementation. The Customer is responsible for the certification. Uncertified hardware can not and will not be accepted on the BSS Network. If the Hardware is not certified within 6 (six) months, Customer will pay a fee to BSS because of the relevant costs parties made and the loss in revenues of BSS. The fee will be discussed when the certification is not done within the mentioned time frame.
- If a Connection has been terminated, Customer is responsible for the subsequent behaviour of the hardware in relation to possible traffic or (mobile)usage. If the hardware continuously attempts to reconnect to the Network, BSS shall inform Customer of this. Customer shall remedy this situation within one calendar month of the notification. Should Customer fail to remedy the situation, then BSS will be entitled to charge Customer the monthly bundle fee applicable to the connection which has been terminated. This fee will be increased with 10% per subsequent month until the situation is remedied by Customer.
- The current charges and tariffs for the Services and the conditions under which these charges and tariffs are provided related to the Territory, are set out in Client Account Agreement. The applicable prices for the ordering of SIM Cards are also set out in Client Account Agreement.
- Unless otherwise agreed in writing, the Customer will pay all charges in connection with the shipment of SIM Cards, including without limitation transportation charges, insurance premiums, duties, costs of compliance with export and import controls and regulations, and other governmental assessments.
- BSS is entitled to amend the prices, charges and tariffs included in Client Account Agreement. Amendments will come into effect two weeks after the date the announcement is sent or at a later date specified in the announcement, unless in the Territory a different statutory term is required, which will be followed in that case. If the Customer refuses to accept an amendment, resulting in an increase to the charges and/or tariffs that apply to a Service it has ordered or purchased, it may terminate the Order for that Service in writing as of the date on which the new charges or tariffs take effect. The right to terminate does not apply with regard to amendments of any applicable roaming charges. The notice of termination has to be sent by the Customer by registered mail and must be received by BSS before the date on which the amendment takes effect.
- The Customer shall be responsible for all use made of a Connection provided under an Order, provided however that the Customer will not be responsible for the use of a Connection if: (i) the Customer had previously requested the Connection to be terminated as from the applicable termination date, or (ii) as from the applicable moment detailed in the relevant Annex for the Territory or (iii) when the Customer requested the blocking of a SIM card in accordance with the procedures set out in the relevant Annex. Otherwise, all usage charges and other charges payable for the use of the Connection are for the account of the Customer.
- Customer has been made fully aware by BSS of the applicable EU regulation concerning Roaming charges. Parties agree that in specific deviation of these regulations, Customer shall not receive:
• a SMS notification when the specific SIM-card has reached 80% of €50 monthly data costs;
• a SMS notification of the applicable roaming tariffs when crossing borders within the EU and/or outside the EU.
- Rate plan changes during the month will go into effect at the start of the new billing month and Rate plan activations are charged on a full month basis.
10. Payment and Billing
- he purchase of SIM cards will be invoiced upon shipment to the Customer. For all other Services, BSS will send an invoice to the Customer containing the amounts payable by the Customer under an Order that have fallen due in the preceding calendar month(s). Each invoice will specify, in reasonable detail, a description of each charge or category of charges.
- The fees stated in the invoice will be paid by the Customer in full within seven (7) days of the invoice date, by crediting a bank account in the name of and designated by BSS.
- If payment has not been made before or on the due date, BSS may charge the statutory interest on all outstanding amounts plus an additional annual rate of 5 % above base rate.
- As long as payments have not been made by the Customer within seven (7) calendar days calculated as from the due date with respect to one or more Order(s), BSS is entitled to refuse any new Order placed by the Customer and BSS is entitled to suspend providing services to the Customer in accordance with article 6, Suspension of Services or dissolve the contract. BSS will send one written reminder and can disconnect Customer, without additional notification from the Service if Customer fails to pay the invoices or does not pay the undisputed part of the invoices.
- Where applicable BSS shall provide the Customer with localised currency billing. If Customer is located in a territory other than the agreed currency territory or pays from a bank account outside such territory, Customer shall bear all bank-charges. No bank-charges can be deducted from the payment by one of the banks. BSS is entitled to receive the full amounts due.
The Customer shall ensure cleared payment reaches BSS bank account on or before the agreed payment date. The Customer may pay by bank direct debit or standing order/transfer (as agreed). If the customer has provided BSS with a direct debit authorization, BSS is entitled to use it from the date of the invoice. BSS may specify additional requirements or limitations for the payment methods, whereby BSS is entitled to charge additional costs for payment methods other than direct debit.
Objections / Disputes
- Customer may, in good faith, dispute any invoiced amount. Objections to the invoice should be submitted within a fatal term of seven (7) days of the invoice date, in absence thereof the invoice is deemed to be accepted by Customer. The submission of objections may not lead to a deferral of payment for that part of an invoice to which no objections are submitted.
Guarantee of Payment
- If required by BSS, the Customer shall execute for the benefit of BSS an irrevocable and unconditional bank guarantee, which can be called on first demand by BSS for the full amount in the event of any breach of the Agreement by the Customer.
- The amount of the bank guarantee must at any moment at least be equal to the amounts invoiced by BSS to the Customer during the last three consecutive months that have been invoiced. For the first three months after the Effective Date, BSS shall give a reasonable indication for the required amount of the bank guarantee. If the amount of the bank guarantee no longer covers the equivalent of the invoiced amount for those three consecutive months, the Customer shall increase, upon first request of BSS and within the timeframe as indicated by BSS, the bank guarantee up to an amount covering the equivalent amount.
Use of Intellectual Property
- The Parties agree that they are not entitled to use each other’s Trademarks, except and insofar as this is explicitly permitted and previously agreed in writing with regard to the Services described therein.
- Subject to that stipulated in this Article 11, these Terms and Conditions are not for the purpose of transferring intellectual property rights or issuing user rights or other rights on them to the other Party.
- The Customer shall obtain a non-exclusive and non-transferable right and license to use the software included in the Customer Hardware (Servers) and the accompanying user documentation. The intellectual property rights to all software included in the Customer Hardware and accompanying user documentation supplied by BSS to the Customer shall remain vested in BSS or its suppliers.
- The Customer shall not be permitted to copy the software included in the Services and the accompanying user documentation supplied to him, other than for report generation for backup purposes. In making backup copies, the Customer shall leave intact all signs which indicate ownership and origin.
- Without the written consent of BSS and/or its suppliers, the Customer shall not be permitted to make alterations or additions (or have them made) to the software included in the Services.
- The Customer will not, directly or indirectly: reverse engineer, decompile, disassemble or otherwise attempt to discover the source code, object code or underlying structure, ideas or algorithms of the Services or any software, SIM cards or data related to the Services (“Software”, which term shall be deemed to include any user documentation); modify, translate, or create derivative works based on the Services or any Software; or copy (except for archival purposes), rent, lease, distribute, pledge, assign, or otherwise transfer or encumber rights to the Services or any Software; use the Services or any Software for timesharing or service bureau purposes or otherwise for the benefit of a third party, except for authorized End-Users of the Customer; or remove any proprietary notices or labels with respect to the Services. BSS’s supplier of the Services owns and retains all right, title and interest in and to the Services and Software and all related intellectual property rights (except title to the tangible SIM cards (excluding software) delivered to Customer per Article 7.1).
- BSS assumes no liability towards the Customer or its End-Users within the context of the execution of the Agreement, except as stipulated in Article 12.
- BSS only assumes liability towards the Customer for damage resulting from attributable shortcomings, or tort or otherwise, in case and to the amount covered by the insurance of BSS and only in the following cases and in each case to the maximum amount of:
• damages as a consequence of death or bodily injury, up to a maximum amount of €500,000 (half a million Euro) per incident as well as in respect of any series of events arising out of a single incident or common cause in any 12 months.
• damages as a result of termination of a Connection without reasonable cause, up to an amount of €1,000 per Connection with a maximum of €250,000 or, if this is lower, of the value of the last 3 (three) invoices for connectivity of the last quarter.
• damages as a consequence of damage to property of the Customer as a result of the implementation of the Services, up to a maximum of €500,000 (half a million Euro) per incident as well as in respect of any series of events arising out of a single incident or common cause in any 12 months.
- Under no circumstances, BSS is liable towards the Customer or End-User for any form of indirect or consequential damage, including but not limited to loss of data, loss of business, turnover or profits, loss of interest as well as resulting claims of third parties.
- The limitation of liability as referred to in the above paragraphs does not apply if damage is the result of wilful intent or deliberate recklessness on the part of BSS and/or its executives.
- BSS is not liable towards the Customer or End-User in the event the Customer, or its End-users did not comply with instructions or terms of BSS or its suppliers.
- Damage should be reported in writing as soon as possible, but ultimately 10 (ten) Working Days after it could reasonably have been discovered. Damage not reported to the other Party within this period does not qualify for compensation.
- The Parties shall observe secrecy with regard to all Confidential Information that they obtain from the other Party in connection with the execution of the Agreement, and will take reasonable measures to protect the confidentiality of such information as if it were their own Confidential Information, and shall not disclose this information to third parties without the prior written consent of the other party, unless stated otherwise in this Agreement.
- The obligation to maintain secrecy referred to in the paragraph above, does not apply in respect of:
• information that is generally known or publicly accessible;
• information that was already in the possession of the recipient before it received the Confidential Information;
• information that has been developed independently by the recipient or has been obtained from a third party that was legally entitled to provide this information;
• information that is required to be made public on the grounds of any statutory, legal or similar obligation, including information that is required to be made public within the context of obtaining or retaining a listing on a stock exchange.
- The Parties are entitled to make Confidential Information available to their employees or professional advisor and in the case of BSS to its sub-contractors, insofar as such is necessary in relation to (the implementation of) an Order, provided they ensure that these persons observe a similar level of secrecy as required under the terms of this Article 13.
- The stipulations laid down in the previous paragraphs remain applicable until two (2) years after the termination of these Terms and Conditions.
- The Parties will only make statements about their collaboration public (including the publication of press releases) upon mutual consent. The Customer herewith gives permission to be listed as a customer of BSS. If one of the Parties wishes to make any publication or press release which involves reference to the corporation between the Parties other than the mentioning as a customer or as a supplier, it is required to obtain the consent of the other Party.
Term, Termination, Early Termination and Dissolution
- The Agreement shall come into effect on the Effective date and continue in force for the Initial Term. The Agreement shall be automatically renewed for successive periods equal to the Initial Term, unless terminated by either Party by notice given in writing by means of communication ensuring evidence and date of receipt not less than 3 (three) months before the date of expiry of the Initial Term and any extensions thereof.
- Any (Order with regard to a) Connection, which is purchased or renewed under these Terms and Conditions will be subject to the Minimum Term.
- Unless explicitly agreed otherwise and notwithstanding expiry of the Initial Term of the Agreement, any (Order with regard to a) Connection shall continue for the Minimum Term as stipulated in the previous paragraph. Any (Order with regard to a) Connection may be terminated by either Party on or after expiry of the Minimum Term. If the Customer terminates any Connection before expiry of the Minimum Term, the Customer will pay to BSS the applicable Early Termination Fee for the remainder of the Minimum Term in relation to each Connection thus terminated. An early termination fee, consisting of the agreed: (i) any outstanding one-off costs, (ii) monthly bundle fee applied to the connection to be terminated, multiplied by the remainder of the Minimum Term, (iii) any monthly management fees, (iv) any applicable monthly VPN fees and (v) any applicable annual fees.
- As from the date any notice of termination of the Agreement is sent by either Party, no new Orders will be accepted by BSS.
- Each Party has the right to dissolve the Agreement and all Orders in place immediately and without judicial intervention, in the event that the other Party files or has been asked to file for a declaration of bankruptcy, or if the other Party is dissolved or if the other Party materially breaches the Agreement and the breach is not cured during the notice period of 30 (thirty) days. Each Party has the right to terminate with immediate effect the Agreement and all Orders in place if the control or deciding vote of the Party is transferred to an unaffiliated third party and it cannot be reasonably expected that the Agreement will continue unamended.
- In addition to the other termination rights included in this Article 14, BSS shall at all times be free to terminate any Order for the Services upon 30 (thirty) calendar days written notice if BSS’s supplier of Services is – for whatever reason – no longer able to render the Services.
- The termination or dissolution of any Order under this Article shall be carried out by means of a written statement to that effect either by registered post mail, overnight mail with a reputable carrier or by confirmed e-mail.
- In the event of a termination of the whole Agreement, including all (outstanding) Orders, the provisions in these Terms and Conditions shall cease to apply, with the exception of the provisions of these Terms and Conditions, which, from their nature, do not lapse, including in any case the provisions relating to notice, confidentiality, liability and applicable law. However where an individual Order continues upon expiry of the Term, the relevant clauses of this Terms and Conditions shall continue until termination or expiration of all outstanding Orders.
- Parties agree that Customer shall have activated, not later than the date mentioned in Client Account Agreement after the Effective Date, the minimum number of Connections as set forth in Client Account Agreement (“minimum commitment”). After their activation and subject to Article 14(3), each individual Connection shall have a Minimum Term as mentioned in article 14(2). If Customer fails to satisfy its minimum commitment obligation, Customer will be due, in addition to the amounts already due for activated Connections and for the Minimum Term set out above, an amount which consists of the agreed (i) one-off SIM card costs, (ii) monthly Default Rate Plan Fee multiplied by the Minimum Term, (iii) any monthly management fees, (iv) any applicable monthly VPN fees and (v) any applicable annual fees, for the shortfall between the actual amount of Connections activated and the minimum commitment, unless explicitly agreed otherwise. The aforementioned shortfall shall be invoiced to Customer in accordance with Article 10.
Sale of BSS services to Customer’s end-customer
- By entering into this Agreement Customer enters into a reseller relationship with BSS. This Agreement does not constitute an agency agreement.
- Customer shall be granted the right by BSS to purchase BSS’s products and services and to sell these products or services to its own end-users under its own name and at its own risk.
- Customer is solely and fully responsible for the proper compliance of the obligations under this Agreement by its End-Users, and warrants the correct execution of such obligations.
- With regard to the provision of service, notwithstanding all Customer’s obligations out of existing contracts with BSS, the following specific provisions shall apply:
1. BSS shall, for Customer and its End-Users, provide and maintain a helpdesk that will process and answer all possible questions from of the Customer concerning the provided telecommunication services and all possible additional service.
Customer shall be responsible for a helpdesk for its own customers and end-users.
2. BSS shall provide a comprehensive and transparent invoice and automatic payment facilities to the Customer and its End-Users.
3. Customer warrants that Customer shall actively promote the service of BSS to its End-Users, as well as to potential end-users in Customer’s group.
- Customer is solely responsible for the relationship with its End-Users, and guarantees that it shall impose on its own End-Users all Customer’s obligations towards BSS, based on the contractual relationship between BSS and Customer, that Customer will require to ensure that Customer can fulfil all its obligations towards BSS.
Applicable law and disputes
- The Agreement, all Orders placed there under and the resulting relationship between Parties shall be governed by the laws of the England.
- If the Parties cannot reach agreement on a dispute, it shall be submitted to the competent court in England.