The following terms (in singular or plural form) as used in these Terms and Conditions shall have the following meanings:
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.
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”.
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.
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).
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.
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.
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.