Terms and conditions

Terms and conditions

These general terms and conditions apply to any and all use of products and services offered by DATASIM from time to time, including the Products and Services.

 

  1. Definitions

Access Services

Means the Services described in the 2Access Service Description (Annex 3.3), as amended from time to time.

 

Airtime

Means wireless airtime and network capacity.

Bearer Services

Means the provision by DATASIM to the Customer of GPRS Bearer, SMS and/or any other Bearer Services (including 3G, 4G), which DATASIM may from time to time provide according to the  Service Description , as amended from time to time.

 

Call-Off Order

Means a request by Customer to procure Services under the Agreement.

 

Charges

Means any and all fees and/or charges under the Agreement.

 

Communications Module

The communications component which provides wide area (2G, 3G, 4G) radio connectivity,  comprising of Communications Module firmware, radio baseband chipset and UICC

 

Confidential Information

Means all information transferred to the other Party under the Agreement or during negotiations before execution of the Agreement.  The term Confidential Information includes, but is not limited to designs, plans, samples, equipment, reports, personal data (including but not limited to Customer data), subscriber lists, pricing information, performance reports, studies, drawings, schedules, specifications, technical data, databases, Software in any form, documentation, and correspondence between the Parties under the Agreement and any other business or technical information.  Excluded from Confidential Information is information which the recipient had in its possession without confidential limitation prior to disclosure, which is independently developed by either Party, which is known or becomes known to the general public without breach of the Agreement or which is received rightfully and without confidential limitation from a third party.

 

Value Added Services

Means the Value-Added Services such as installation, insurance, field Bearer Services, repair etc. as may be made available from time to time by DATASIM.

 

Customer Backend

Means the Customer’s IT service platform which communicates with the (End) Customer Device using the Access Services and Roaming Network Services.

 

Device

Means the wireless device, or Equipment incorporating a UICC, Communications Module and firmware which controls the behavior and application logic.

End Customer Services

Means the Services provided by the Customer to End Customers.

End-User Licensed Software

Means any software, the license terms for which are governed by a separate agreement with the licensor of such software, typically by means of a “click-wrap” or “shrink-wrap” license agreement.

Equipment

Means the Device or any other equipment approved for connection to or use with the Network including any Software and documentation.

Incident

Means an unplanned interruption or reduction of quality of the Services. Incidents are managed through the Incident management process as set out in the Service Level Agreement (Annex 4).

 

Initial Term

Means the term from the Effective Date and for the number of months stipulated in the main body of the Agreement.

 

2Connect

Means the services described in the Service Description, as amended from time to time, including Bearer Services Coverage area and roaming control.

 

IoT Solution

means Customer’s entire communication IoT Solution, including Device, Equipment, Customer Backend, applications and servers, network equipment and Internet Service Providers.

 

Major Network Disturbance

Means a Network Disturbance which has the following characteristics: (a) regional interruption of the Access Services or Roaming Network Services; or (b) global interruption or degradation of the Access Services or Roaming Network Services.

 

Minor Network Disturbance

Means a Network Disturbance which has the following characteristics: (a) a single Roaming Provider or country with interruption or degradation of the Access Services or Roaming Network Services; or (b) regional degradation of the Access Services or Roaming Network Services.

 

MSU

Means Message Signaling Unit, a data packet that carries signaling information which are transmitted through either a Signaling System Number 7 (SS7) or a diameter network.

 

Network

Means all of the cables, exchanges, transmitters, receivers, computer hardware and software, and other equipment and facilities by which the Services are provided (excluding equipment owned or used by the Customer and by other users and customers of the Services).

 

Network Disturbance

Means the temporary interruption or degradation of the Access Services due to an Incident, faults in roaming partners’ network or non-compliance with Network Communications policy (Annex 6).

PTCRB

Means the independent body established as the wireless device certification forum by North American Mobile Network Operators. For more information, see http://ptcrb.com

Prolongation Term

Means the prolongation of the Agreement in accordance with the Frame Service Agreement.

 

Primary Contact

Means the person appointed by the Customer and stated in this Agreement, who will act as the key interface and primary contact point with DATASIM.

 

Roaming Network Services

Means the network connectivity and communication services as supplied by the Roaming Provider.

 

Roaming Provider

Means a third-party supplier which supplies the mobile network connectivity and communication services.

 

End Customer

Means the customer(s) of the Customer to whom the Customer provides End Customer Services under the terms of an End Customer Agreement.

Service

Means services and products as agreed with the Customer, including but not limited to 2Connect, 2CONTROL,  2Access, and/or Value-Added Services, as further described in the relevant  Annexes (as amended from time to time by DATASIM and constituting an integral part of the Agreement) offered by DATASIM to Customer in accordance therewith. The services offered under this Agreement shall only include IoT services as defined by the GSMA in their reference document BA.48 (“Allowed Use”). All other use of the Services or part(s) thereof, require case-by case approval in writing by DATASIM, which may be withheld at the sole discretion of DATASIM.

SIM Card

Means the card, bearing a unique ICCID, IMSI and MSISDN, and the related personal unlocking key , used with the Equipment to enable access to the 2Connect Service.

 

SIM Card Charges

Means the non-usage dependent part of the Charges payable on a monthly basis per SIM Card.

 

Software

Means any software (including End-User Licensed Software) supplied to the Customer by DATASIM or any other supplier under the terms of or in respect of this Agreement.

 

2CONTROL

Means the platform as further described in the 2CONTROL Service Description, as amended from time to time.

 

Termination Notice

Means written notice to terminate this Agreement.

 

Transition Services

Means the provision of migration of End Customer Services including the provision of such End Customer information and Customer staff and resource as DATASIM may reasonably require and to the extent commercially necessary to ensure the seamless transfer of End Customers from the Customer to DATASIM or a third party.

 

2Control: special Terms & Conditions

Means the special terms and conditions governing the use of the 2CONTROL Service, as amended from time to time.

 

Working Day

Means a day (other than a Saturday/Sunday) on which banks in the Netherlands are open for of banking transactions.

 

  1. CALL-OFF ORDERS

2.1. When Customer desires to purchase Services under this Agreement (including but not limited to 2Connect, 2CONTROL and 2Access) Customer shall submit a written Call-Off Order via the Order Form, based on the template as provided by DATASIM, approved and signed by an authorized representative of Customer. The Customer shall send the Call-Off Order to the e-mail address as specified in Annex 1 Authorized and Contact Persons.

 

2.1.   The Call-Off Order shall be in a format as provided by DATASIM. Applicable and current versions of Call-Off Order or Order Form templates can be supplied by DATASIM upon request.

 

2.2.   The Customer approves the persons stated in Annex 1 Authorized and Contact Persons.

 

2.3.   DATASIM may, in its sole discretion, accept a Call-Off Order by sending a  Confirmation back to Customer, within fourteen (14) working days as of the date of the relevant Call-Off Order. A Call-Off Order not confirmed within the fourteen (14) working days period shall be deemed as declined by DATASIM. DATASIM shall under no circumstances be obliged to acknowledge, accept or confirm an Order.

 

2.4.   DATASIM undertakes to use all reasonable endeavors to fulfill any accepted and confirmed Call-Off Order as soon as reasonably practicable and if possible by the requested dates for delivery/commencement.

 

2.5.   During the Term of the Agreement, any and all purchases and/or licensing made by Customer from DATASIM for hardware, software, documentation and/or services that directly or by implication is related to the Services shall automatically be deemed as a purchase made under this Agreement as amended from time to time, unless otherwise explicitly agreed between the Parties in a separate written agreement.

 

 

2.6. Services are dependent on the Customer and DATASIM agreeing on a term for such service. If the Customer desires to purchase Services, the Parties shall agree on the term in the relevant Call-Off Order. If no term is agreed in the Call-Off Order the term shall be twelve (12) months calculated from the Activation of each of Service. Unless terminated no later than three (3) months prior to the expiration of the term, the relevant service shall run until either of the Parties terminates the service with three (3) months’ notice at any time, such notice to be in writing. If a term of any Service remains when the Agreement expires or is terminated, the Agreement shall continue to apply until the term for such Service has expired or has been terminated.

 

  1. BILLING ARRANGEMENTS

3.1.   Charges will be invoiced by the end of each calendar month.

 

3.2.   DATASIM shall by the end of each calendar month, submit to the Customer one or more invoice(s) which shall itemize charges for the Services.

 

3.3.   All Charges shall be based upon call and billing data recorded by DATASIM and/or agreed non-usage dependent fee.

 

3.4.   The Customer hereby agrees to pay the Charges in full without any deduction or set-off to DATASIM within 30 days following the date of invoice for such Charges.

 

3.5.   Without prejudice to any other rights of DATASIM in the event of the Customer failing to pay any sums due to DATASIM on time or at all notwithstanding notification of the overdue debt to the Customer DATASIM shall be entitled to:

  1. a) charge interest in accordance with the statutory commercial interest rate in the Netherlands (’handelsrente’) on amounts overdue from the Customer under this Agreement from the due date until the payment is actually made and charge all administrative charges made and to be made to collect overdue amounts; and
  2. b) suspend the provision of the Services and the performance of customer services and/or until such time as all payments due including all interest accrued has been paid and satisfied in full; and
  3. c) decline any and all incoming Call-Off Orders from the Customer.

3.6.   DATASIM reserves the right to review any credit applied to this Agreement. DATASIM may require from the Customer a deposit as security for payment of Charges. The Customer may request the return of any deposit paid at the expiry of any 12-month period but the decision to return any deposit prior to termination of the Agreement will be at the discretion of DATASIM. DATASIM reserves the right to set off any deposit against the Charges.

 

3.7.   In the event that the Customer has not disputed an invoice within three (3) months after the issuance of such invoice, the Customer forfeits the right to dispute the invoice, including parts thereof.

 

3.8.   The Charges agreed in Annex 2 (with sub-annexes), can be changed from time to time by DATASIM by notifying the Customer of the changed prices and rates at least 1 (one) calendar month before they take effect.

 

  1. SERVICE STANDARDS

4.1.   DATASIM will perform its obligations in this Agreement with the reasonable skill and care of a competent  service provider and will do its utmost to deliver the Services in such way that they conform in all material respects to the description of the same in the applicable product and service descriptions under Annex 3 with sub-annexes (as amended from time to time). Further, DATASIM provides service levels as described in Annex 4 with sub-annexes.

 

4.2.   DATASIM will provide the Service consistent with prevailing industry standards in a manner that endeavors to minimize errors and interruptions in the Service. The Service may be temporarily unavailable for scheduled maintenance, either by DATASIM or by third-party providers, or for other causes beyond DATASIM’s reasonable control. For the avoidance of doubt DATASIM is not liable for any unavailability of the Services under the above circumstances.

 

4.3.   The Customer acknowledges that the provision of Airtime is subject to the geographic extent of Airtime coverage and local geography, topography and/or atmospheric conditions and/or other physical or electromagnetic interference that may from time to time adversely affect the provision of the Airtime in terms of line clarity and call interference. For the avoidance of doubt DATASIM does not warrant any Airtime. It is the Customer’s responsibility to ensure Airtime on sites where Customer intends to use the  Services.

 

4.4.   DATASIM may, where reasonable, from time to time and without notice and without prejudice to its rights hereunder, suspend any Service and at its discretion disconnect a SIM Card in any of the following circumstances, provided that it shall use reasonable endeavors to restore the Services and reconnect the SIM Card as soon as reasonably practicable:

 

 

  1. a) during any technical failure, modification or maintenance of the Network; and/or
  2. b) if the Customer fails to comply with the terms of this Agreement (including but not limited to failure to pay any sums due hereunder) until such failure to comply is remedied; and/or
  3. c) if the Customer fails to comply with the 2CONTROL Special Terms and Conditions (Annex 5.2) until such failure to comply is remedied; and/or
  4. d) if the Customer fails to comply with the terms of the Network Communication Policy in Annex 6 until such failure to comply is remedied; and/or
  5. e) if the Customer causes anything, which in DATASIM’s reasonable opinion may have the effect of jeopardizing the operation of the Network or the Services, or the Services are being used in a manner prejudicial to the interest of the Customer and/or DATASIM; and/or
  6. f) due to an emergency or upon instruction by emergency services or any government or appropriate authority or for the Customer’s own security.
  7. g) if Customer fails to comply with applicable laws and regulations.

4.5.   During any period of suspension arising from the circumstances detailed in Article 5.4,, the Customer shall remain liable for all Charges levied in accordance with this Agreement.

 

4.6.   DATASIM may vary or modify any Service, as required by legislation or other relevant authority.

 

4.7.   The Customer warrants and undertakes to ensure that each Device used by Customer or provided to End Customer shall comply in all material respects with the latest applicable issues of European and international standards to the extent such compliance is required by European or International legislation, law or regulation.

 

  1. OBLIGATIONS OF THE CUSTOMER

5.1.   The Customer undertakes that throughout the Initial Term and Prolongation Term, if applicable, it will take all necessary  steps to ensure that its employees and/or End Customers as applicable will:

  1. a) comply with and use any Service in accordance with this Agreement including any Annex and sub-annex;
  2. b) notify DATASIM immediately (and to confirm in writing) on becoming aware that any Device has been lost or stolen or that any person is making improper or illegal use of the Device, SIM Card or the Services. The Customer will be responsible for any Charges incurred as a result of unauthorized use of any Device, or SIM Card, or the information contained within a SIM Card, until DATASIM has received a request from the Customer to suspend the Services to that Device or SIM Card;
  3. c) not use the Services fraudulently or in connection with a criminal offence or for the purpose of sending unsolicited text messages or any material which is offensive, abusive, indecent, defamatory, obscene or menacing, a nuisance or a hoax or which breaches any person’s intellectual property rights or rights of privacy or is otherwise unlawful;
  4. d) provide its services to End Customers with all reasonable skill and care;
  5. e) comply at all times with such reasonable operational requirements of DATASIM as may be notified to the Customer from time to time;
  6. f) provide such information relating to the provision of the End Customer Services as DATASIM may reasonably require, evidencing, to DATASIM’s satisfaction, the Customer’s compliance with its obligations set out in this Agreement, including but not limited to, keeping DATASIM informed of the progress of its business with End Customers.
  7. g) not act or omit to act in any way which will or may bring DATASIM into disrepute or place DATASIM in breach of any licenses; authorizations, provisions of law or regulation and/or directions applicable to DATASIM;
  8. h) not procure End Customers for any improper, immoral or unlawful purpose;
  9. i) not directly or indirectly be involved or knowingly recklessly or negligently permit any other person to be involved in any fraud and shall immediately upon becoming aware of any such fraud notify DATASIM and comply with such procedures and rules adopted by or binding on DATASIM from time to time concerning such fraud;
  10. j) not use any name, trademark or other designation of DATASIM including any contraction, abbreviation, or simulation of any of the foregoing in, advertising publicity or marketing activities without the prior written consent of DATASIM;
  11. k) comply with any and all guidelines issued by DATASIM to the Customer in respect of branding and use of trademarks, logos and other such intellectual property in respect of the Services;
  12. l) appoint a Relationship Manager to liaise with DATASIM on all matters relevant to this Agreement; and;
  13. m) comply with all applicable laws.

5.2.   The Customer is obliged to incorporate the 2CONTROL Special Terms and Conditions in Customer’s agreements with its End Customers. 

  1. END-USER LICENSED SOFTWARE

6.1.   The Customer recognizes that the Services may be dependent upon End-User Licensed Software and if the Customer does not accept the license terms relating to any End-User Licensed Software, DATASIM shall have no liability whatsoever for any failure to provide the Services to the Customer where the Services depend on the use of End-User Licensed Software.

 

6.2.   Where the Customer accepts the terms of a license in respect of any End-User Licensed Software, then those license terms shall take precedence over any terms within this Agreement relating to End-User Licensed Software and shall exclusively comprise the Customer’s sole rights and remedies in respect of such End-User Licensed Software.

 

  1. TERMINATION OF THE AGREEMENT

7.1.   A Termination Notice may be given by either Party and the Agreement terminated with immediate effect if:

  1. a) the other Party is in material breach; and (i) the breach is capable of remedy and the Party in breach shall have failed to remedy the breach within thirty (30) days of written notice specifying the breach and requiring its remedy, or (ii) the breach is not capable of remedy, or the breach is that material that granting a cure period is not acceptable for the Party invoking the breach; or
  2. b) bankruptcy or insolvency proceedings are brought against the other Party;

or the other Party enters into liquidation or becomes insolvent as defined in the Dutch Bankruptcy Act or has been granted a (provisional) suspension of payments or makes a request for either of these;

or reaches a settlement regarding payment of its debt for the benefit of its creditors;

or  has a receiver, administrator or administrative receiver appointed over all or substantial parts of its assets.

 

7.2.   A Termination Notice may be given to DATASIM by the Customer and the Agreement terminated two (2) calendar months thereafter,  if DATASIM substantially varies the terms and conditions of the Agreement to the Customer’s material disadvantage.

 

7.3.   The Customer shall ensure in its respective agreements with End Customers e.g. by respective consent declarations and commits itself that in the event that a Termination Notice is served by DATASIM on the Customer pursuant to this Agreement and at the exclusive option of DATASIM (the exercise of such option to be notified to the Customer in writing within 5 Working Days of service of any notice of termination of this Agreement or within such longer period as the Parties shall agree):

  1. a) the Customer agrees to provide DATASIM with details of all its End Customers who use the Services in order that DATASIM may approach such End Customers to determine whether they require ongoing provision of the Services directly from DATASIM or another third party with whom DATASIM has a relationship, and which third party is capable of providing services equivalent to the Services;
  2. b) the Customer and DATASIM shall co-operate and shall agree processes and procedures within 5 Working Days of service of such notice pursuant to Article 8.3 a) for communicating with End Customers as to the consequences of termination of this Agreement for End Customers; and
  3. c) the Customer agrees to provide Transition Services to DATASIM for a period of 60 Working Days from the date of termination of this Agreement in respect of such transfer or assignment of End Customers, without charge to DATASIM.

7.4.   Notwithstanding the foregoing, DATASIM reserves the right, without liability, to discontinue parts of its Service offering, in the event that a technology necessary for the provision of a Service offered becomes obsolete, or is otherwise discontinued, for instance if a network technology is discontinued by a supplier of DATASIM. DATASIM shall provide reasonable notice to Customer before the actual discontinuation of such Service. Moreover, DATASIM reserves the right to modify or terminate any or all of the Services at any time, without liability for DATASIM, if necessary due to a change in relevant law, regulation, export control laws and regulations, all applicable economic, trade and financial sanctions laws, regulations, and embargoes or restrictive measures or similar. DATASIM shall notify Customer of any such modification or termination in question within a reasonable period of time.

 

  1. OWNERSHIP

8.1.   Title to, and all intellectual property rights in the Software, associated documents and all parts thereof will be and remain vested in and be the absolute property of DATASIM respectively the owner of the Software or associated documents as appropriate, which owner shall be entitled to enforce any of the terms of this Agreement relating to the Customer’s or End-Customer’s use of that Software, associated documents and all parts thereof, directly against the Customer.

8.2.   Except as expressly provided in this Agreement, nothing in this Agreement will be deemed to or require DATASIM to transfer, assign or license any intellectual property rights to the Customer.

8.3.   All information or materials supplied to DATASIM by the Customer in connection with the Agreement, together with the copyright therein, will remain the property of the Customer with the understanding that DATASIM will have an unrestricted global license to use such information or materials to perform the Services.

  1. DATA PROCESSING

Should Customer process personal data when using the Services, and such use result in loss, damage and/or cost to DATASIM, Customer shall indemnify and hold DATASIM harmless against any such loss, damage and/or cost.

 

  1. LIABILITY

10.1.   Datasim shall not be liable to the Customer in respect of any matter arising out of or in connection with this Agreement or otherwise for any loss (whether direct or indirect) of profit, business, revenue, anticipated savings, goodwill or any loss or corruption of data, or any indirect or consequential loss or damage whatsoever.

 

10.2.   DATASIM does not accept liability for any effects upon Customer’s Equipment or any effects upon Customers users (including End Customers) of the Customer’s Equipment, or upon any electronic or radio systems in equipment, vehicles or aircraft in the vicinity of such users, of any emissions or transmissions to, from, by or through the Network and/or the Customer’s Equipment.

 

10.3.   Nothing in this Agreement shall exclude or restrict the liability of either Party for:

  1. a) death or personal injury resulting from that Party’s gross negligence and willful intent;
  2. b) claims for financial damage caused by gross negligence or willful intent;
  3. c) claims in respect of any indemnities set out in the Agreement;
  4. d) fraud or fraudulent misrepresentation; or
  5. e) any loss or damage arising under Annex 5.2 – 2CONTROL Special Terms and Conditions.

10.4.   DATASIM’s aggregate liability of any sort resulting from DATASIM’s negligence or otherwise arising in connection with this Agreement shall be limited to the amount Customer paid for the Services during the prior 12 calendar months.

 

10.5.   The express terms of this Agreement are in lieu of all warranties, conditions, terms, undertakings and obligations implied by statute, common law, custom, trade usage, course of dealing or otherwise, all of which are hereby excluded to the fullest extent permitted by law.

 

10.6.   DATASIM does not accept liability for the acts or omissions of other providers of telecommunication services.

 

10.7.   Nothing in this Agreement shall give rise to any contractual relationship between DATASIM and an End Customer.

 

10.8. The Customer shall be solely liable for its obligations to End Customers in respect of the provision of End Customer Services and accordingly indemnifies DATASIM in respect of all costs and expenses incurred by DATASIM resulting from any claims brought directly against DATASIM by any End Customer in respect of the provision to that End Customer of End-Customer Services.

 

10.9 Customer agrees to indemnify and hold DATASIM harmless from and against all liabilities which are not caused by gross negligence by DATASIM, and all losses incurred by DATASIM in connection with claims (including without limitation, all losses, claims, charges, demands and damages) resulting from fraudulent use by Customer’s own and external operators’ customers.

 

10.10  Customer agrees to indemnify and hold DATASIM harmless from and against any and all liabilities and all losses incurred by DATASIM in connection with claims (including without limitation, all losses, claims, charges, demands and damages), penalties, fines or other sanctions from regulatory authorities or similar, resulting from Customer’s traffic and use of the Services in violation of applicable regulatory requirements.

10.11.   The Customer shall be solely liable to DATASIM in respect of all Charges relating to any Services provided by DATASIM to the Customer under this Agreement:

  1. a) whether or not the Customer incorporates the Services in the End Customer Services; and
  2. b) irrespective of whether or not the End Customer agreement is terminated for any reason.

10.12.   No action, regardless of form, arising out of any alleged breach of the Agreement or obligations under the Agreement may be brought by the Customer more than two (2) months after the cause of action has occurred.

 

  1. FORCE MAJEURE

11.1.   DATASIM shall not be liable for non-performance or defective or late performance of any of its obligations hereunder to the extent and for such periods of time as such non-performance, defective or late performance is due to causes and/or conditions outside of DATASIMs reasonable control.

 

 

 

11.2.   Causes and/or conditions outside of a Party’s reasonable control shall include, but not be limited to, strikes and other labor disputes, fire, explosions, floods, earthquakes, typhoons, epidemics, wars (whether declared or undeclared), government acts (including failure to act) (de jure

or de facto), riots, revolutions, sabotage or severe weather conditions which the Party claiming excuse could not have reasonably foreseen the effects of or made alternative arrangements for.

 

11.3.   Strikes and other labor disputes shall only be considered as causes and/or conditions outside of a Party’s reasonable control if (i) the Party is not able to perform the obligations that the Party is precluded from as a result of such strike, and (ii) there are no other similar means or ways available, e.g. transport worker strike or boycott stopping loading or discharge shall not be considered as causes and/or conditions outside of a Party’s reasonable control if and to the extent goods may be air freighted as an alternative. In case of a situation beyond the affected Party’s reasonable control, the affected Party shall without undue delay notify the other Party in writing and furnish the other Party with all relevant information thereto.

 

11.4.   In case of delay caused by causes and/or conditions outside of a Party’s reasonable control, the right of relief shall apply irrespective of whether the cause of delay occurs before or after the agreed completion date.

 

11.5.   Should a delay caused by causes and/or conditions outside of a Party’s reasonable control continue for more than three (3) months, either Party shall then, have a right to terminate the Agreement or Call-Off Order, as relevant, upon reasonable advance notice to the other Party.

  1. CONFIDENTIALITY

12.1.   All information (oral, visual and written) transferred to the other Party under the Agreement or during negotiations before execution of the Agreement shall be treated by the receiving Party as confidential. The Parties agree:

–          to maintain the confidentiality of such Confidential Information and not disclose the same to any third party, except as authorized by the original disclosing Party in writing. Such Confidential Information also includes oral and visual Confidential Information.

–          to restrict disclosure of Confidential Information to employees, consultants and group companies who have a “need to know”. Such Confidential Information shall be handled with the same degree of care that the receiving Party applies to its own Confidential Information but in no event less than reasonable care.

–          To not use  any Confidential Information  except as  provided herein and no grant under any proprietary rights is hereby given or intended.

–          to use such Confidential Information only as required for performance of its Service offering or the Agreement.

 

12.2.   However, each Party may disclose Confidential Information in accordance with judicial or governmental order, mandatory legal requirement, in relation to providing evidence in case of legal proceedings or applicable mandatory regulations.

 

12.3.   The Confidential Information shall be considered confidential for a period of five (5) years from the termination or expiration of the Agreement, as relevant.

 

  1. ASSIGNMENT

DATASIM may assign this Agreement to a company within its own group of companies that is wholly owned by, or under the control of, DATASIM or DATASIM’s ultimate parent company without Customer’s prior written consent. All other assignments of this Agreement require the other Party’s prior written consent. Any purported assignment of this Agreement without obtaining the required written consent will be void and of no effect. This Agreement shall be binding upon and inure to the benefit of the Parties hereto, their successors, legal representatives and assignee’s. 

  1. NOTICES

14.1. Notices required to be given by one Party to another shall be deemed properly given if reduced to writing and personally delivered or sent by registered or certified post or e-mail to the address(es) in Annex 1, postage prepaid and shall be effective upon receipt.

 

14.2. Either Party may from time to time, by written instructions to the other Party, change the addresses or e-mail addresses for giving notice.

 

  1. HEADINGS

Headings used in these conditions or throughout the Agreement are used for convenience only and shall not affect the interpretation of the Agreement.

  1. NO WAIVER

The failure of either Party to insist, in one or more instances, upon the performance of any of the terms or conditions of the Agreement, or to exercise any right hereunder, shall not be construed as a waiver or relinquishment of the future performance of any such terms or conditions or the future exercise of such right, and the obligation of Customer or DATASIM with respect to such future performance shall continue in full force and effect.

 

  1. GOVERNING LAW

The Agreement shall be governed by and construed in accordance with the substantive laws of the Netherlands

 

  1. SEVERABILITY

Each provision of the Agreement shall be construed in such a manner as to be effective and valid under the substantive laws of the Netherlands.   If any article of the Agreement should be null and void or declared not applicable by a competent court, that article will be deemed to have been replaced by a provision to be agreed upon between the Parties that approximates as closely as possible the intention that Parties intended when drafting the void or nullified article and the other articles of this Agreement will remain in full force and effect.

 

  1. SETTLEMENT OF DISPUTES

19.1.  Each Party shall promptly notify the other Party in writing of any dispute arising under this Frame Service Agreement, Annex or Order Form. Following such notice, the Parties shall discuss and escalate such disagreements up to management or board level of both the Parties to reach a mutually acceptable solution.  If the Parties have not reached an agreement or settlement within sixty (60) days from receipt by one Party of notice of the dispute from the other, such disagreements may be referred to by either Party, as appropriate, to the competent regulator or industry committee installed by law for a specified purpose, and/or to the competent court in  in Zuid-Holland, the Netherlands.

 

19.2. This Article 20 shall not prevent either Party from obtaining injunctive relief from a court of competent jurisdiction to preserve the status quo, while it seeks to enforce its rights under this Article 20.

  1. ENTIRE AGREEMENT

The Agreement constitutes the entire agreement between the Parties with respect to the subject matter hereof and supersedes all previous negotiations, proposals, commitments, writings, oral statements, and understanding of any nature whatsoever. Any change to the Agreement requested either by Customer or DATASIM may only be affected if mutually agreed upon in writing by duly authorized representatives of the Parties.

 

  1. MODIFICATION OF THE AGREEMENT

No modification, amendment or other change may be made to the Agreement or any part thereof unless reduced to writing and executed by authorized representatives of both Parties.

 

 

 

 

 

 

 

 

 

 

 

 

 

2Connect: special Terms & Conditions

These special terms and conditions apply to the use of the 2Connect Service.

 

  1. DEFINITIONS

Access Services

Access Services means the services described in the 2Access Service Description.

 

Activation

When one or more of the Bearer Services is/are provisioned to Customer through Customer’s activation of SIM Card.

 

Airtime

Means wireless airtime and network capacity.

 

Bearer Services

Means the provision by DATASIM to the Customer of GPRS Bearer, SMS and/or any other Bearer Services (including 3G, 4G), which DATASIM may from time to time provide according to Annex 3.1.

 

Coverage Area

Means the approximate geographic area specified in the document DATASIM Roaming List ) as may be amended from time to time constituting an integral part of this Agreement, within which the Services are from time to time made available by DATASIM to the Customer as more particularly described in Clause 5.6.

 

Customer Backend

Means the Customer’s IT service platform which communicates with the Customer Device using the Access Services and Roaming Network Services.

 

IMEI Number

Means an International Mobile Equipment Identity Number (IMEI).

 

Roaming Network Services

Means the network connectivity and communication services as supplied by the Roaming Provider.

 

Roaming Provider

Means a third-party supplier which supplies the mobile network connectivity and communication services.

 

SIM Card

Means the card, bearing a unique ICCID, IMSI and MSISDN, and the related personal unlocking key, used with the Equipment to enable access to the Wireless Service/s.

 

SIM Card Charges

Means the non-usage dependent part of the Charges payable on a monthly basis per SIM Card.

 

Termination Fee

Means the SIM Card Charges for the period from the date of disconnection of a SIM Card to the end of the Minimum Period (if any) in respect of that SIM Card.

 

  1. CALL-OFF ORDERS

2.1.   The 2Connect Service and Access Service are dependent on the Customer and DATASIM agreeing on a term for such Services. If Customer desires to purchase the 2Connect Service and Access Service, the Parties shall agree on the term in the relevant Call-Off Order. If no term is agreed in the Call-Off Order the term shall be twelve (12) months calculated from the Activation of each of 2Connect and Access Service. Unless terminated no later than three (3) months prior to the expiration of the term, the extension period of the relevant Service shall run until either of the Parties terminates the Service by providing three (3) months’ notice; such notice to be in writing. If a term of any Service remains when the Agreement expires or is terminated, the Agreement shall continue to apply until the term for such Service has expired or been terminated.

 

  1. BILLING ARRANGEMENTS

All Charges shall be based upon call and billing data recorded by DATASIM and/or agreed non-usage dependent fee. The Customer acknowledges that roaming calls may take longer to be billed than other types of calls.

  1. BEARER SERVICES

4.1.   DATASIM agrees to provide the Bearer Services as agreed in the applicable Call-Off Order. The different types of Bearer Services are further described in the 2Connect Service Description , as amended from time to time.

 

4.2.   When Customer decides to activate Bearer Services or change status on Activated Bearer Services (if such change is applicable), DATASIM undertakes to use all reasonable endeavors to fulfill any activation or change as soon as reasonably practicable. DATASIM is not liable for any delays in activating/changing of Bearer Services.

 

4.3.   Upon acceptance by DATASIM of Activation or change of any Bearer Services the Bearer Services will be charged according to the applicable configuration and price list. If Customer has made and DATASIM has accepted an Activation/change that is not stipulated in the applicable configuration and price list, Customer accepts that DATASIM charges according to DATASIM’s standard price list as applicable from time to time.

 

4.4.   Certain elements of the Bearer Services are dependent on the Customer having suitable infrastructure available and/or using an appropriate Device and in the event that the Customer is unable to provide suitable infrastructure, or fails to use an appropriate Device, then:

  1. a) some or all of the Bearer Services may not function correctly;
  2. b) DATASIM reserves the right not to provide the Customer with the Bearer Services; and
  3. c) DATASIM shall have no liability for the Customer’s inability to receive the Bearer Services.

4.5.   DATASIM is acting as a wireless service provider and as such has no knowledge of, involvement with, or liability for the specific content of items sent to or from the Customer’s Device.

 

4.6.   DATASIM does not guarantee the availability of any specific roaming partner or service provider in any part of the coverage area (as described in the 2Connect Service Description,  and the DATASIM IoT Roaming list  (as amended from time to time) and Customer acknowledges that any of such roaming partners or service providers is liable to change at any time.  If a roaming partner is deemed to be not suitable for whichever part of the Coverage area, DATASIM shall be entitled to respectively amend or reduce the coverage area. Notwithstanding the termination rights triggered by such amendment or reduction of the coverage area  such amendment or reduction of the coverage area does not give rise to claims of the Customer whatsoever. Moreover, Customer accepts and acknowledges that in case:  – Customer’s, or End Customer’s, traffic violates allowed traffic on a Roaming Provider network,  – a Roaming Provider restricts certain types of traffic on its network, and/or   – a Roaming Provider changes the terms and conditions for the roaming services provided;   DATASIM reserves the right to terminate such violating or restricted traffic on a Roaming Partner network, and revise the prices for such roaming services, providing reasonable notice, and/or introduce additional charges if such charges are levied by a Roaming Partner, during the Term.

 

  1. SIM CARDS

5.1.   Storage conditions for MFF2 (embedded) SIM Cards, both UICC and eUICC:

– Temperature 5-40 (grader)

– Relative humidity <90%

– Shelf-lifetime is max 12 months in reference to order date

 

5.2.   Risk of loss or damage to the SIM Cards will transfer to Customer upon delivery of the SIM Cards in accordance with applicable Incoterms that is defined in the Call-Off Order of SIM-Cards. DATASIM is not responsible for any loss or damage to SIM Cards once delivered.

 

5.3.   The Customer shall ensure as soon as reasonably possible, via testing or some equivalently comprehensive means that the SIM Cards provided by DATASIM are compatible with the Devices prior to the incorporation. It is the Customers responsibility to test the SIM Card and Device.

 

5.4.   The SIM Cards delivered by DATASIM shall be free of defects at the time of delivery (i.e. that SIM cards are performing according to the 2Connect Service Description, as amended from time to time). DATASIM provides no warranties of SIM Card functionality.

 

5.5.   Upon delivery, the Customer shall thoroughly inspect, and test delivered SIM Cards. Defects or deficiencies that are or could have been discovered by such inspection and testing must be reported with a detailed written explanation to DATASIM within 2 (two) months after delivery to the Customer, otherwise any rights in connection therewith shall lapse.  The burden of proof that a SIM Card was defective as of delivery shall lie with the Customer.

 

 

 

5.6.   Upon valid  claims on the basis of the above regulations DATASIM shall comply with its obligations by providing an amount of new SIM Cards corresponding to the number of defective SIM Cards in order for the Customer to replace the defective SIM Cards.  SIM Cards shall be delivered to the same address as the original batch of SIM Cards. For avoidance of doubt, DATASIM has no obligation to perform any services or cover any costs for services related to replacement of SIM Cards regardless of the cause of the error.

  1. SERVICE STANDARDS

6.1.   DATASIM will perform its obligations in this Agreement with the reasonable skill and care of a competent  service provider and will do its utmost to deliver the Services in such way they conform in all material respects to the description of the same in the applicable service descriptions in Annex 3. DATASIM provides service levels as described in Annex 4.

 

6.2.   DATASIM will provide the Service consistent with prevailing industry standards in a manner that endeavors to minimize errors and interruptions in the Service. The Service may be temporarily unavailable for scheduled maintenance, either by DATASIM or by third-party providers, or for other causes beyond DATASIMs reasonable control. For the avoidance of doubt DATASIM is not liable for any unavailability of the Services under the above circumstances.

 

6.3.   The Customer acknowledges that the provision of Airtime is subject to the geographic extent of Airtime coverage and local geography, topography and/or atmospheric conditions and/or other physical or electromagnetic interference that may from time to time adversely affect the provision of the Airtime in terms of line clarity and call interference. For the avoidance of doubt DATASIM does not warrant any Airtime. It is the Customer’s responsibility to ensure Airtime on sites where Customer intends to use the Bearer Services.

 

6.4.   DATASIM may, where reasonable, from time to time and without notice and without prejudice to its rights hereunder, suspend any Service and at its discretion disconnect a SIM Card in any of the following circumstances, provided that it shall use reasonable endeavors to restore the Services and reconnect the SIM Card as soon as reasonably practicable:

  1. a) during any technical failure, modification or maintenance of the Network; and/or
  2. b) if the Customer fails to comply with the terms of this Agreement (including but not limited to failure to pay any sums due hereunder) until such failure to comply is remedied; and/or
  3. c) if the Customer fails to comply with the terms in Annex 5.2 2CONTROL Special Terms and Conditions until such failure to comply is remedied; and/or
  4. d) if the Customer fails to comply with the terms of the Network Communication Policy in Annex 6 until such failure to comply is remedied; and/or
  5. e) if the Customer causes anything, which in DATASIM’s reasonable opinion may have the effect of jeopardizing the operation of the Network or the Services, or the Services are being used in a manner prejudicial to the interest of the Customer and/or DATASIM; and/or
  6. f) due to an emergency or upon instruction by emergency services or any government or appropriate authority or for the Customer’s own security.

6.5.   DATASIM may at its discretion suspend any SIM Card from functioning if DATASIM has reasonable cause to suspect fraudulent use of the SIM Card or the Device or are identified as being stolen.

 

6.6.   During any period of suspension arising from the circumstances detailed in Article 7.4, (a-f) or Article 7.5 the Customer shall remain liable for all Charges levied in accordance with this Agreement.

 

6.7.   The Customer warrants and undertakes to ensure that each Device will have its own, unique, and appropriate, IMEI Number. The Customer warrants that the Device sends the IMEI number to DATASIM network and DATASIM SIM card in a correct manner.

 

  1. OBLIGATIONS OF THE CUSTOMER

The Customer undertakes that throughout the Initial Term and the Prolongation Term, if applicable, it will take all reasonable steps to ensure that its employees and/or End Customers as applicable will:

  1. a) notify DATASIM immediately (and to confirm in writing) on becoming aware that any Device or SIM Card has been lost or stolen or that any person is making improper or illegal use of the Device, SIM Card or the Services. The Customer will be responsible for any Charges incurred as a result of unauthorized use of any Device, or SIM Card, or the information contained within a SIM Card, until DATASIM has received a request from the Customer to suspend the Services to that Device or SIM Card;
  2. b) store any SIM Cards it receives prior to activation in a suitable manner to ensure that the SIM Cards are not harmed or damaged in any way;

  1. TERMINATION

Upon the expiry of any Termination Notice or otherwise upon the termination of this Agreement DATASIM will disconnect all SIM Cards no longer bound by a period (if any), (and any other Equipment) from the Services and the Customer will pay to DATASIM any applicable Termination Fee.

  1. EUROPEAN ECONOMIC AREA (EEA) USAGE OF SERVICE

9.1. In the event the Service is provided in any EEA country not defined as the home country in this Agreement, the provisions of Roaming Regulation (531/2012/EC), hereafter referred to as the Roaming Regulation, is applicable.

 

9.2. As a result of the technical solution for providing the Services in accordance with this Agreement, decoupling as defined in Article 4 Roaming Regulation, would if applied have great impact on the stability and the quality of the Service. In order to ensure that the Service is sufficiently delivered and functioning the Customer shall prohibit both commercially and technically, the End Customer from choosing an alternative roaming provider other than DATASIM on the DATASIM SIM Cards. Furthermore, the commercial and technical solution of the Service would be negatively affected by the usage of a local data roaming provider as defined in Article 5 Roaming Regulating. In order to avoid such potential Service deterioration DATASIM shall prohibit End Customer from choosing separate sale of data from other roaming providers than DATASIM. For avoidance of doubt, the Customer (and its End Customer) actively choses to use DATASIM as the sole roaming provider for the performance of the Services in accordance with this Agreement, during the full duration of this Agreement. To be clear, nothing in this Agreement shall in any way limit Customer’s or End-Customers’ rights to purchase SIM Cards including roaming connectivity from third parties. The above limitations are applicable to the SIM Cards provided by DATASIM under this Agreement only.

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 2CONTROL: special Terms & Conditions

These special terms and conditions apply to the use of the 2CONTROL Service.

 

  1. INTRODUCTION

These terms and conditions apply to all customers and users of the 2CONTROL Service (“Users”). Customer will be responsible for all User access and activity in connection with the 2CONTROL Service.  DATASIM and its sub-supplier (“Supplier”) of the 2CONTROL Service reserve the right to suspend use of the 2CONTROL Service for non-payment, apparent device or application malfunctions and perceived violations of these special terms and conditions.

 

  1. REGISTRATION

As a condition to using the 2CONTROL Service, each administrative User of the 2CONTROL Service may be required to register with  DATASIM  and select a unique password and username (“User ID”). Customer shall ensure that each of such Users provides  DATASIM with accurate, complete, and updated registration information. A User may not (i) select or use as a User ID a name of another person with the intent to impersonate that person; or (ii) use as a User ID a name subject to any rights of a person other than such user without appropriate authorization.

 

  1. APPLICABLE LAWS

Users will not use the 2CONTROL Service or related software in any manner that

(a)     infringes the intellectual property or proprietary rights, rights of publicity or privacy or other proprietary rights of others,

(b)     violates any applicable law, statute, ordinance or regulation, including but not limited to laws and regulations related to export, spamming, privacy, consumer and child protection, obscenity or defamation, or

(c)     is harmful, threatening, abusive, harassing, tortuous, defamatory, vulgar, obscene, libelous, or similarly offensive. Further, Users may not add any data into the 2CONTROL Service that may be regarded as personal data. For instance, should User wish to enter information into the fields “End Customer”, User must ensure that such data in no way can be connected to a private person.

 

  1. SECURITY

Users will not violate or attempt to violate the security of the 2CONTROL Service, including, without limitation,

(a)     accessing data not intended for such User or logging into a server or account which such User is not authorized to access,

(b)     attempting to probe, scan or test the vulnerability of a system or network or to breach security or authentication measures without proper authorization,

(c)     attempting to interfere with, disrupt or disable the 2CONTROL Service to any User, host or network, including, without limitation, via means of overloading, “flooding”, “mail-bombing” or “crashing”,

(d)     forging any TCP/IP packet header or any part of the header information in any e-mail,

(e)     taking any action in order to obtain the 2CONTROL Service to which such User is not entitled or

(f)     sending any virus, worm, Trojan horse or other harmful code or attachment. Violations of system or network security may result in civil or criminal liability. DATASIM reserves the right to monitor the 2CONTROL Service at any and all times to facilitate compliance with these special terms and conditions but is not obligated to do so. Each User consents to the processing of information (including personal data) necessary to provide the 2CONTROL Service at DATASIM’s or its suppliers’ data Centers.

 

  1. CONFIDENTIALITY

Users acknowledge that the 2CONTROL Service (and related information provided) represents valuable proprietary information of DATASIM and its Suppliers and that unauthorized dissemination or use of this information is prohibited and could cause irreparable harm to DATASIM and its Suppliers. User will hold such information in confidence, including the results of

any evaluation and will only use such information in connection with the 2CONTROL Service. User will not disclose such information to any person or entity that is not bound by these terms. The three preceding sentences do not apply to information that:

(i) is or lawfully becomes a part of the public

domain;

(ii) was previously known without restriction on use or disclosure;

(iii) is rightfully received from a third party;

(iv) is independently developed;

(v) is approved for release by DATASIM or its Supplier; or

(vi)    is disclosed in response to a valid order

of a court or lawful request of governmental agency or as otherwise required by law, provided that User first notifies DATASIM and secures an appropriate protective order. 

  1. INTELLECTUAL PROPERTY

User 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 2CONTROL Service or any technology related to the 2CONTROL Service (“Technology”, including documentation); modify, translate, or create derivative works based on the 2CONTROL Service or Technology; or copy (except for reasonable archival purposes), rent, lease, distribute, pledge, assign, or otherwise transfer or encumber rights to the 2CONTROL Service or Technology; use the 2CONTROL Service or Technology for timesharing or 2CONTROL Service bureau purposes or otherwise for the benefit of a third party, except for authorized end users; or remove any proprietary notices or labels with respect to the 2CONTROL Service. User will not use the 2CONTROL Service, related software or Technology or access it, as applicable, in order to build a competitive product or 2CONTROL Service, build a product or 2CONTROL Service using similar ideas, features, functions or graphics of the 2CONTROL Service, or copy any ideas, features, functions or graphics of the 2CONTROL Service.  DATASIM and its Suppliers retain all rights in and to the 2CONTROL Service, related software and Technology and are free to use any User feedback on the 2CONTROL Service without notice, attribution or compensation. To be clear, no express or implied license to any  DATASIM  s Suppliers’ patents is conferred in connection with use of the 2CONTROL Service.

 

  1. INDEMNIFICATION

User will indemnify DATASIM and its Suppliers from any claim by a third party (the “claim” including all related liability, loss or expense, including attorneys’ and experts’ charges) that User’s use of the 2CONTROL Service with User’s devices and

applications violate these User Guidelines (including the recommendation against use in fail safe conditions described below) or infringes the intellectual property rights of such third

party, except to the extent such third-party intellectual property rights claim arises regardless of User’s devices and applications and will defend such claims at DATASIM’s or its Supplier’s request, provided that DATASIM  or it’s Supplier  reasonably cooperates in its defense.

 

  1. DISCLAIMER

The 2CONTROL Service will be provided by DATASIM’s Supplier consistent with prevailing industry standards in a manner that endeavors to minimize errors and interruptions in the 2CONTROL Service. Service may be temporarily unavailable for

scheduled maintenance or for unscheduled emergency maintenance or because of other causes beyond Supplier’s or DATASIM’s reasonable control.

 

DATASIM AND ITS SUPPLIERS DO NOT WARRANT THE END RESULTS OBTAINED AS RESULT OF USING THE 2CONTROL Service TOGETHER WITH USER’S DEVICES AND APPLICATIONS OR THAT USE OF THE 2CONTROL Service WILL BE UNINTERRUPTED OR ERROR FREE.  DATASIM AND ITS SUPPLIERS  DISCLAIM ALL IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE AND NONINFRINGEMENT. IN NO EVENT WILL  DATASIM AND ITS SUPPLIER BE LIABLE TO USER FOR ANY DIRECT, INDIRECT, CONSEQUENTIAL, EXEMPLARY, SPECIAL, OR INCIDENTAL DAMAGES IN CONNECTION WITH THE SERVICE.

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