1. DEFINITIONS
“Activation Date” means the Ready for Service Date for the commencement of a Service or SIM Cards and/or Profile , as specified in this Service Terms;
“Charges” means all charges and fees in relation to the provision of the relevant Products as set out and detailed in each Order Form;
“Force Majeure” means the Force Majeure Circumstances as defined under the MSA, and for the purpose of an Agreement, it shall include: (a) any restriction on the supply of a Service pursuant to Applicable Laws or any decision by a Regulator preventing the supply of a Service, and generally any event requiring the implementation of national or local telecommunications service continuity plans; (b) electrical or electromagnetic phenomena which disrupt the GSM-CSD, EDGE, UMTS or GPRS networks; and/or (c) wars, strikes that last more than three months, storms, hurricanes, major floods;
“CTExcel IOT” means the name given to a range of the Company services relating to M2M Service, which provides Customers with end-to-end connectivity between its fleet of Machines equipped with SIM Cards and Customers' site termination point regardless of the country where the SIM Card is located (as long as there are existing roaming agreements in place with the in-country operators), and whether the Machine is moving or standing still;
“Machine” or “Remote Machine” means autonomous equipment located remotely from the server, which is able to communicate using a compatible Terminal by utilizing a packet data circuit. A Machine is able (if necessary) to establish a voice circuit on the GSM network to transmit data in DTMF format or enable a voice exchange between a End User and a voice server or a customer call centre;
“M2M Service” has the meaning given under the MSA, and for the purpose of this Agreement, also means the CTExcel IOT Service, i.e. a service enabling a Machine to receive and/or send data via a compatible dedicated Terminal, using local radio communication capabilities, operator core network and secure access to a server located at Customer’s premises;
“Mobile Networks” means all public mobile telecommunications networks, be they 2G (GSM, GPRS), EDGE, 3G (UMTS), HSDPA/HSUPA and H+, 4G, Wi-Fi, or any other future technology and/or telecommunications standards available via the Service;
“Service(s)”means the M2M Service and the other service provided under these Service Terms and any attachments, appendixes and schedules to the signed Order Form;
“SIM Card”means the microchip card, inserted into a Terminal, used to identify Customer across all Mobile Networks. This may be a SIM, Micro SIM, USIM, or any other type of SIM card or chip. A chip is an integrated circuit component;
“SIM Profile”means a combination of a file structure, data and applications to be provisioned onto, or present on, an eUICC Card and which allows, when enabled, the access to a specific Mobile Networks infrastructure (source: GSMA, 30 June 2015). A“eUICC Card” means an UICC cards which are not easily accessible or replaceable, are not intended to be removed or replaced in the Device, and enables the secure changing of Profiles (source: GSMA, 30 June 2015). The GSMA Embedded SIM Specification also applies to removable M2M SIMs;
“Terminal”means a cellular modem enabling data exchanges between a Machine and a GSM-CSD, EDGE, CPRS, and/or UMTS communication network;
“Territory”means the geographical area agreed under each Order Form for the commercialization of the Value Added Solution;
“Value Added Solution”means Customer’s products integrating CTExcel IOT as part of the solution to be offered by Customer and its Affiliates to their End Users; as such Value Added Solution is defined in the Order Form and/or relevant Service Conditions.
2. Scope
a. These Service Terms are entered into between the Customer and the Company.
b. The Service ordered by Customer pursuant to the terms of the Agreement, including these Service Terms and the related Service Annexes will be as specified in each Order Form.
3. Ordering
a. Prior to commencement of the Service, Customer will provide all relevant technical specifications and administrative details related to the Service specified in or attached to the Order Form. Customer will ensure that all information provided is completed and accurate for Company to provide the Service.
b. Customer may order SIM Cards by placing an Order Form and/or through a service portal indicated by Company. Orders will be placed under the terms and conditions agreed between the Parties, which subject to the signed MSA between the Parties or in the absent of signed MSA, the General Terms and Conditions will be applied.
4. Charges, Invoices, Payment and Taxes
a. The Charges for each Service are set out in the relevant Order Form.
b. The Company will commence invoicing of the Charges from the Activation Date of the relevant Service or SIM Cards and/or Profile as applicable.
c. The Activation Date of each SIM Card and/or Profile will be the earliest of:
i. If the SIM is delivered in "Activated" state, the date the SIM Card is provisioned on the platform;
ii. If the SIM is delivered in "Test" state, the date Customer exceeds the agreed test bundle
iii. or a time period as defined in the Order Form after the SIM Card was provisioned into "Test" state without using the agreed test bundle; or
iv. when the Profile is downloaded and enabled on the eUICC Card.
d. Customer acknowledges that part of the Charges, including but not limited to overages and roaming charges may be invoiced at a later time in accordance with the Order Form.
5. Obligations of Customer General Obligations
a. Customer will be liable for any use of the Services by Customer, its Affiliates, or the End Users. A breach of an Agreement by a Customer's Affiliate or an End User will be deemed to be a breach by Customer and the Agreement will be understood accordingly.
b. Customer will, and will ensure that its Affiliates and the End Users use the Services in accordance with:
i. this Agreement and any reasonable instructions given by the Company;
ii. the Applicable Laws and regulations applicable in the countries where the Service are provided;
iii. the Company’s instructions, typically security aspects, network and devices requirements.
c. Customer will not, and will ensure that its Affiliates and the End Users will not, use the Service for transmitting or receiving data or anything else that:
i. is in violation of any applicable local, national, or international law or regulation;
ii. is defamatory, abusive, obscene, indecent, or harassing; or that threatens or encourages bodily harm, destruction of property, or infringement of the lawful rights of any party; or
iii. contains Software viruses, Trojan horses, or any computer code, files, or programs designed to disrupt, destroy, invade, gain unauthorized access to, corrupt, observe, or modify without authorization, data, software, computing or network devices, or telecommunications equipment.
d. Unless otherwise agreed with the Parties, Customer will not, and will ensure that its Affiliates and the End Users will not, use CTExcel IOT for voice over IP, peer-to-peer and streaming. In this Clause, "peer-to-peer" means a file exchange technology between Internet users, enabling two computers or mobile devices connected to the Internet to communicate directly without going through a central server and “streaming” means the capture of audio/video feeds and the reading of an audio or video file in real time, i.e. as it is received (the file is neither downloaded nor stored before it is read). When voice over IP, peer-to-peer, and streaming are agreed between the Parties, it will be strictly limited to what is permitted by law.
e. When applicable, Customer will provide in a timely and secure manner any information required to identify the End User to which the Company Profile has been allocated and any other information under its control which is legally required for the Company or its Affiliates to respond to an official judicial or regulatory request within the deadlines and in the format imposed by the law or by the judicial and/or regulatory authorities.
f. In the event a SIM Card is lost or stolen and/or a fraudulent use of a Profile is detected, Customer shall immediately notify the Company and the Company will deactivate the access to the Company Network. This deactivation will be deemed to occur on the date the Company received the notification from Customer. Customer will be liable for any use of the SIM Card and/or Profile before the deactivation. The Company will not be responsible for any inaccurate request of deactivation. The Service remains in force notwithstanding this deactivation. A replacement fee for the SIM Card and/or the Profile may be charged in accordance with each Order Form.
6. Regulatory Obligations General
a. Customer will provide the necessary assistance and information when required from the Company or its Affiliates to comply with their legal and regulatory obligations in respect of the Service provided to Customer. In particular, Customer will provide in a timely manner all information under the control of Customer with regard to the End Users, which is legally required for the Company or its Affiliates to respond to any official request within the deadlines imposed by the law or by any competent authorities.
b. Customer will comply with all regulatory obligations relating to the provision of the Value Added Solution by Customer and its Affiliates to the End Users.
c. Customer will obtain at its own expense and thereafter comply with all necessary permissions, consents and licenses (including those required to be given by any government department or anybody constituted under the law of the location in which CTExcel IOT is used, for licensing or other regulatory purposes relating to the provision of the M2M Service) to enable Customer to purchase, use, distribute, market, and sell the Value Added Solution in the concerned locations.
d. The Company reserves the right at its sole discretion to amend these Service Terms to comply with any legal or regulatory requirements imposed from time to time by any competent authority in relation to the provision or use of the M2M Service.
e. The Company will not be liable to Customer for any changes required to the Service, which are consequences of legal or regulatory compliance requirements.
f. The Company will be fully entitled to refuse, suspend or discontinue the provision of Service to Customer or any End User in any location by providing to Customer as much prior notice as is appropriate under the circumstances, if the Company, in its reasonable discretion, determines that the provision of Service will in any way jeopardize the Company’s ability or authority to provide the Service (either to Customer, any End User, or any other customer or generally) in any country, in the event of such refusal, suspension, or discontinuation of Service, the Parties will discuss in an attempt to find an alternative solution, if any, that would allow the provision of the relevant Service to that location.
7. Company Obligations
a. The Company will provide the Service ordered by Customer in accordance with the MSA signed by both parties, this Service Terms and any other relevant technical specifications and administrative details agreed by both parties in writing with the signed Order From (if applicable).
b. The Company will not be liable for disruptions or interruptions to the Service resulting from:
i. the maintenance, improvement, redevelopment, or extension work on the Mobile Networks’ facilities or any IT systems used to deliver the Service;
ii. the hardware or Software, other than the SIM Card, used by Customer, its Affiliates, or the End Users;
iii. the actions of a Third Party other than a subcontractor or supplier of the Company;
iv. the improper use and malfunctioning of the Internet or of service accessed via the Internet or computer viruses transmitted over the Internet;
v. reasons outside the control of the Company, such as disruption to radio-telephone transmissions as a result of atmospheric conditions, fluctuations in electromagnetic wave propagation, or Machines being outside the Mobile Network coverage areas;
vi. the reliability of data transmission, access times, any access restrictions that may arise on specific networks and/or servers connected to the Internet;
vii. technical incompatibility between the Mobile Networks and an intranet access security solution contracted by Customer from a service provider; and
viii. the failure of a SIM Card to properly work in a Terminal which does not comply with applicable regulations or standards.
c. The Company is not responsible for and Customer will be solely responsible for:
i. the incorrect utilization of the SIM Cards or the Service;
ii. the data transmitted or content of calls and messages, or the damage they may cause;
iii. the use of the Service (including of the SIM Cards) by Customer, its Affiliates or the End Users;
iv. any loss or theft of a SIM Card;
v. any damage to a SIM Card, other than a defect in the Software itself or in the medium on which it is provided. If there is a defect in a SIM Card or if the medium on which it is provided by the Company and such defect is within the Company’s responsibilities, the Company will repair or replace the affected SIM Card or medium free of charge as a sole and exclusive liability, unless otherwise agreed under the Order Form. This warranty is excluded when the Customer acquires the SIM Card and/or the medium on which it is provided, from a Third Party; and,
vi. any security breach resulting from an act or omission of the Customer.
8. Intellectual Property Rights
a. The parties acknowledge and agree that all Intellectual Property Rights which may hereinafter be disclosed by a party to the other party shall, notwithstanding such disclosure, remain the exclusive property of the disclosing party and the other Party shall not use or authorize the use of any such Intellectual Property Rights otherwise than as expressly permitted by this Agreement and for the purposes stated herein.
b. Each party shall not make any admission, attempt to settle or otherwise contact any Third Party in respect of any claim relating to Intellectual Property Rights without the written consent of the other party.
c. The parties acknowledge and agree that nothing in an Agreement shall confer or deem to confer on both Party, any right, title or interest in the other Party’s Intellectual Property Rights, and each party hereby acknowledges that it shall not acquire any right, title or interest in respect thereof.
d. When the SIM Cards are acquired by the Customer, the latter acknowledges that such transfer is only related to the medium. Any technical specification, Software, or Intellectual Property Rights remain the property of the Company or its supplier.
e. The Company will grant to Customer, its Affiliates, and End Users a non-exclusive and single non-transferable license to use the SIM Cards and its documentation strictly for the purpose of using the Service.
f. Customer will not, and will procure that its Affiliates or the End Users do not, copy any elements included in the SIM Cards or its documentation or cause them to be copied.
g. For the purpose of this clause 8, "Intellectual Property Rights" means all rights conferred under statute, law and equity in and in relation to trade marks, trade names, logos, inventions, patents, designs, copyright, circuit layouts, know-how and trade secrets and all rights and interests in them or licences to use any of them, including above rights contained on the SIM Card.
9. Suspension and Termination
a. The Company will be entitled to suspend and/or terminate the Service with immediate effect, by giving notice to Customer, if Customer, its Affiliates or the End Users make any unauthorized use of the Service or commit a material breach of the Agreement, including these Service Terms, and Customer does not remedy the breach (if it is capable of remedy) within thirty (30) days of notice of the breach being given by the Company.
b. Customer will not be entitled to any compensation or remedy on the suspension and/or termination of a Service, or the Agreement, as permitted by the Agreement.
10. Conditions for Use of CTExcel IOT
a. Customer may use CTExcel IOT for its own requirements or for integration in its products as part of the Value Added Solution. Such integration will be in accordance with the conditions set out herein.
b. Customer can only commercialize CTExcel IOT as an integral part of the Value Added Solution and in the Territory.
c. The Service acquired from the Company under an Agreement is meant to be included in a product designed or developed by Customer and not resold on a stand-alone basis, unless otherwise expressly agreed by the Company.
d. Customer will procure that its Affiliates and the End Users are made aware of and agree to comply with the terms and conditions of an Agreement MSA regarding the restrictions of use of the CTExcel IOT and the restrictions contained in this Clause.
e. Customer will irrevocably and unconditionally indemnify and keep indemnified the Company and its Affiliates from and against all claims, liabilities, demands, proceedings, Losses, penalties, costs (including without limitation, reasonable legal and other professional costs) and reasonable expenses suffered or incurred by the Company arising out of or in connection with Customer, its Affiliates or End Users acting or failing to act in relation to the Value Added Solution and/or Customer’s and its Affiliates’ dealings with End Users in general, including any claims or other demands brought by an End User or end-user of the Value Added Solution.
11. Discontinuity
a. To enhance the Service provided to Customers, the Company reserves the right to change at any time platform features and/or network and/or IT systems used to deliver the Service. If such change affects significantly the Service delivered to the Customer, the Company will aim to notify Customer at least five (5) days prior to the expected date of the change.
b. If the change affects Customer in a materially adverse way, Customer will be entitled to terminate the affected Service without liability for either Party. The termination will be effective on the date this change becomes effective.
c. The Company reserves the right to discontinue the provision of a Service in its entirety. In such case, the Company will notify Customer at least three (3) months prior to the expected date of termination of the Service. All corresponding Order Forms will terminate at the date of termination of the Service. Customer will not be entitled to any damage or remedy for such termination.
d. The Company will use reasonable endeavors to propose an alternative service if feasible.