Standard Supply of Goods and Services Agreement
This document is a supply of goods and services agreement (“Agreement”) governing the supply of SIMs and Connectivity Services. It is made between: (1) Stacuity Limited, company number 135066C, with its registered address at Silverdale, Silverdale Road, Ballasalla, IM9 3DS (“Stacuity”, “we”, “us”, “our”); (2) and the counterparty named in the Order (“you”, “your”). The terms of this Agreement shall be deemed accepted by clicking “Accept” or taking any other similar action confirming your acceptance to the terms of this Agreement. Where an individual makes an Order and enters into this Agreement on your behalf, you confirm that such individual is duly authorised to accept the Agreement on your behalf and bind you as a party to this Agreement.
YOUR ATTENTION IS DRAWN TO CLAUSE 5.6 and CLAUSE 12 LIMITATION OF LIABILITY
The following definitions and rules of interpretation apply in this Agreement.
API: means an Application Programming Interface we make available to you in connection with your use of the Platform.
API Documentation: means all documents made available in connection with your use of the API including user guides and technical documentation up to date copies of which can be found via our Website.
Account: means a user account, which is created for the purpose of accessing the Platform.
Affiliate: in relation to a party, any entity that directly or indirectly controls, is controlled by, or is under common control with that party from time to time.
Applicable Laws: all applicable laws, statutes, regulations from time to time in force.
Applicable Data Protection Laws: means:
- To the extent IoM DPA applies, the law of the Isle of Man which relates to the protection of personal data.
- To the extent the UK GDPR applies, the law of the United Kingdom or of a part of the United Kingdom which relates to the protection of personal data.
- To the extent the EU GDPR applies, the law of the law of the European Union or any member state of the European Union to which we are subject, which relates to the protection of personal data.
Authorised Provider: means a third party who we have authorised to sell and distribute SIMs on our behalf.
Business Day: a day other than a Saturday, Sunday or public holiday in England when banks in London are open for business.
Business Hours: 9am-5pm on a Business Day.
Charges: any sums which you are required to pay under this Agreement.
Commencement Date: means the earlier of: (a) the supply of the SIMs by us or an Authorised Provider; and (b) the date on which you enter into this Agreement.
Connectivity Charges: means the charges payable by for Connectivity Services.
Connectivity Services: means access to mobile data connectivity and SMS services through use of SIMs embedded or otherwise installed within a Device which enables the transmission of information between Devices and computer servers or other machines or devices.
Credit: means the balance of credit allocated to your SIMs based on the amount of Connectivity Charges paid which enables you to receive the benefit of the Connectivity Services.
Device: means a device which is used directly or indirectly by you in order to receive the benefit of the SIMs and Connectivity Services provided under this Agreement.
Documentation: means all documents made available in connection with the Agreement including user guides and technical documentation up to date copies of which can be found via our Website.
End-User: means an end-user making use of the Services whether that be you or another individual who you have re-sold the Services to in accordance with the provisions of this Agreement.
End-User Portal: means the portal through which you enable End-Users to access the Services when reselling the Services which shall either be: (a) through the Platform on a white labelled basis; or (b) through a separate application, software or platform that is connected to the API.
EU GDPR: means the General Data Protection Regulation ((EU) 2016/679), as it has effect in EU law.
GSMA Guidelines: means the GSMA standard guidelines for device efficiency, as set forth in the GSMA IoT Device Connection Efficient Guidelines version 7.1, dated 9 June 2021, as amended from time to time.
Intellectual Property Rights: patents, rights to inventions, copyright and neighbouring and related rights, moral rights, trade marks and service marks, business names and domain names, rights in get-up and trade dress, goodwill and the right to sue for passing off or unfair competition, rights in designs, rights in computer software, database rights, rights to use, and protect the confidentiality of, confidential information (including know-how and trade secrets) and all other intellectual property rights, in each case whether registered or unregistered and including all applications and rights to apply for and be granted, renewals or extensions of, and rights to claim priority from, such rights and all similar or equivalent rights or forms of protection which subsist or will subsist now or in the future in any part of the world.
IoM DPA: means the Isle of Man Data Protection Act 2018.
Mobile Carrier: means any mobile network operator, mobile virtual network operator, or other third party that enables, directly or indirectly, Connectivity Services under this Agreement.
Mobile Carrier Conditions: are limitations, restrictions, terms, conditions and obligations relating to the Connectivity Services of any specific Mobile Carrier which are provided to you via our Website, Platform or otherwise and as may be established and/or amended from time to time.
Order: means an order for SIMs and/or Services placed by you.
Platform: means the platform supplied by Stacuity under this Agreement via the Website which enables you to monitor and control the SIMs and Connectivity Services.
Platform Documentation: means all documents made available in connection your use of the Platform including user guides and technical documentation up to date copies of which can be found via our Website.
Platform Fee: the fee for being granted access to use the Platform as specified on the Price List.
Price List: Stacuity’s price list for the Charges which may be updated by us from time to time.
Roaming List: means a list of countries where the Connectivity Services will be available published by Stacuity on the Website as may be amended from time to time.
Services: the provision of SIMs, the provision of the Platform, the API and the Connectivity Services.
SIMs: a subscriber identity module chip, which may be installed into a Device to enable that Device to receive the Connectivity Services.
UK GDPR: has the meaning given to it in section 3(10) (as supplemented by section 205(4)) of the Data Protection Act 2018.
Usage Charges: the charges for using the Connectivity Services as specified the Price List.
VAT: value added tax or any equivalent tax chargeable in the UK or elsewhere.
Website: means Stacuity’s website currently at [https://www.stacuity.com/] or any other web address we notify you of from time to time.
1.2 – Clause, Schedule and paragraph headings shall not affect the interpretation of this Agreement.
1.3 – A person includes a natural person, corporate or unincorporated body (whether or not having separate legal personality).
1.4 – Unless the context otherwise requires, words in the singular shall include the plural and in the plural shall include the singular.
1.5 – Any words following the terms including, include, in particular, for example or any similar expression shall be construed as illustrative and shall not limit the sense of the words, description, definition, phrase or term preceding those terms.
2. Order for SIMS
2.1 – Where you place an Order for SIMs with us directly, the terms set out in this clause 2 shall apply. Where you place an Order for SIMs through an Authorised Provider, the purchase and fulfilment of that Order will be subject to their own terms and conditions and this clause 2 shall not apply, but the remainder of this Agreement shall apply to you including with respect to your use of any other Services.
2.2 – The SIM Prices are published on the Price List. It is your responsibility to check the latest version of the Price List before making an Order. The Price List is exclusive of VAT, delivery charges and other special fees. We will include VAT (at the prevailing rate), delivery charges and other special fees when we display the final price of the Order during the check-out process before you confirm your Order.
2.3 – You may place an Order for SIMs by following the onscreen prompts on the Website.
2.4 – Each Order by you is an offer by you to buy the SIMs specified in the Order subject to the terms of this Agreement. You are responsible for ensuring that your Order is complete and accurate before it is submitted.
2.5 – Our acceptance of your Order takes place when we send the email to you to accept it, at which point a binding contract between you and us will come into existence based exclusively on the terms and conditions set out in this Agreement (including, without limitation, clause 8.1) or as otherwise communicated by us to you.
2.6 – If we are unable to supply you with SIMs for any reason, we will inform you of this by email and we will not process your Order. If you have already paid for the SIMs, we will refund you the full amount including any delivery costs charged as soon as possible.
2.7 – We reserve the right to amend the specification of the SIMs after an Order for such SIMs has been made if required by any applicable statutory or regulatory requirement.
2.8 – Once an Order has been made, we will contact you with an estimated delivery date. We will endeavour to complete delivery of your Order by this date but shall not be liable for any failure to do so.
2.9 – Delivery is complete, and the SIMs will be at your risk from that time, once the SIMs have been unloaded at:
- the address for delivery set out in your Order, or
- if you give us (or our delivery provider) an alternative delivery location after making the Order, such as a safe place, the alternative delivery location.
2.10 – If you fail to provide us with adequate delivery instructions or otherwise fail to take delivery of the SIMs we shall be able to cancel the Order without liability and may charge you reasonable costs incurred in cancelling your Order.
2.11 – Whilst we do fulfil Orders for SIMs to addresses outside the UK, you accept that:
- your Order may attract import taxes and/or other analogous levies and taxes. Where this is the case you will be responsible for paying those sums and accept that your Order may be held by your local customs authority until such sums are paid. You shall not be entitled to cancel an Order on the basis of unforeseen taxes or levies.
- you are solely responsible for ensuring that your Order complies with all laws applicable to you in your territory and if your Order is breach of applicable laws you accept that your Order may be held or destroyed or that action or proceedings may be issued against you by local law enforcement.
3. End Users
3.1 – Where your Order permits, you may re-sell the SIMs and the Services on the following conditions:
- You shall be solely responsible and liable for any and all actions or omissions of End-Users;
- You shall not grant any rights which you do not expressly receive under this Agreement;
- You shall ensure that all End-Users comply with applicable law and regulation; and
- You shall ensure that all End-Users comply with all applicable terms of this Agreement and enter into a valid and enforceable written agreement with all End-Users to ensure such compliance. For the avoidance of doubt, the applicable terms shall include without limitation: clauses 5.4, 5.5, 8 and Schedule 1.
3.2 – When you resell the Services you shall not:
- represent yourself as an agent of ours for any purpose;
- give any condition or warranty on our behalf;
- make any representation on our behalf;
- commit us to any contracts;
- otherwise incur any liability for or on our behalf; or
- without our written consent, make any promises or guarantees about the Services beyond those set out in this Agreement or as otherwise agreed with us in writing.
3.3 – The Reseller shall be solely responsible for handling any complaints from customers relating to the Products and shall bear the cost of all returns from customers relating to the Products.
3.4 – We shall be entitled to refuse, restrict, limit or revoke any access of such Services to the End-Users in order to protect our legitimate business interests or where we believe that any End-User Agreements entered into are inconsistent with the terms of this Agreement.
3.5 – You shall indemnify us against all liabilities, costs, expenses, damages and losses (including but not limited to any direct, indirect or consequential losses, loss of profit, loss of reputation and all interest, penalties and legal costs (calculated on a full indemnity basis) and all other professional costs and expenses) suffered or incurred by us arising out of or in connection with the End-User’s use of the Services.
3.6 – You accept that we may from time to time introduce new policies, rules or directions governing your rights to resell the Services and you shall comply with the same as if they were part of this Agreement.
4.1 – Stacuity grants you a non-exclusive, non-transferable, sub-licensable right and licence to use the Platform and Platform Documentation subject to and in accordance with the terms and conditions of this Agreement.
4.2 – Stacuity shall grant you a non-exclusive, non-transferable, sub-licensable right and licence to use the API and API Documentation subject to and in accordance with the terms and conditions of this Agreement.
4.3 – Where you are using the API, you shall, and you shall ensure that all End-Users shall:
- only access (or attempt to access) the API by the means described in the API documentation;
- where we set and/or enforce limits on your use of the API, not attempt to circumvent such limitations of the API;
- accept and allows us to monitor use of the API to ensure compliance with the terms of this Agreement.
4.4 – If you wish to access the Software you will need to create an Account, and, where you have not already done so, accept the terms of this Agreement.
4.5 – Your Account is personal to you, and you shall not permit any third party to access your Account.
4.6 – You confirm that the information provided when creating the Account is accurate and complete, and that you will update us as and when any such information changes.
4.7 – You agree to take measures to maintain the security and secrecy of the Account username, password, and other Account information. You must notify us immediately after you become aware of any breach of security or unauthorised use of the Account.
4.8 – You are solely responsible for all activity that occurs under the Account.
4.9 – We shall use commercially reasonable endeavours to make the Platform available 24 hours a day, seven days a week, except for planned maintenance. We will use reasonable endeavours to notify you of any planned maintenance by publishing a notice on the Website however we shall not be in breach of this clause if we are unable to do so.
4.10 – You will comply with the licence restrictions and acceptable use requirements specified in Schedule 1 when using any of the Software.
4.11 – Where you resell the Services, you are permitted to grant End-Users a non-exclusive, non-transferable right and licence to use the End-User Portal to enable them to benefit from the Services provided that you do in accordance with clause 3. This clause11 specifies the only way in which you may sub-licence the Platform and/or API.
5. Connectivity Services
5.1 – Stacuity shall provide the Connectivity Services in accordance with the terms of this Agreement.
5.2 – Where any element of the Connectivity Services is provided, supported and/or facilitated by a third party (including the Mobile Carriers), we: (i) shall not be responsible for such element of the Service provided, supported and/or facilitated by such third party supplier; (ii) shall apply to the Services any variation, update, change or cancellation of such element as required and/or applied by such third party supplier; (iii) do not guarantee the availability of any specific roaming partner or service provider in any part of the coverage area (as set out in the Roaming List) and you acknowledge that the identity of any of such roaming partner or service provider is subject to change at any time.
5.3 – For the avoidance of doubt, we shall: (i) remain responsible for managing the relationships with our third party suppliers providing, support or facilitating any element of the Connectivity Services; (ii) provide you with as much prior notice as is reasonably practicable in the circumstances of any such variation which has a material impact on the provision of Connectivity Services; (iii) use reasonable endeavours to rectify issues with such third party suppliers that are impacting the Connectivity Services.
5.4 – You shall not and shall ensure that any End-Users shall not:
- use any Device to access or use the Connectivity Services which is not compliant with the GSMA Guidelines;
- use the Connectivity Services so as to conflict with any accepted industry guidelines, practices, codes or binding memoranda of understanding and in any case so as to cause any impact upon Stacuity’s business relations and/or reputation with third party suppliers;
- use the Connectivity Services fraudulently or in connection with a criminal offence or to send messages or communications which are offensive, abusive, menacing, obscene, incite hatred, panic or anxiety, or which are otherwise unlawful;
- use the Connectivity Services to access, transmit, publish, display, advertise or make available material which infringes copyright or other Intellectual Property Rights held in any country, is obscene or pornographic, contains threats of any kind, is defamatory in any way or breaches confidence which is illegal or infringes any third party’s legal rights of whatever nature under the laws of any jurisdiction for any reason;
- use the Connectivity Services for any purpose which may result in the illegal access to or collection of data whilst in transit, illegal access to computers or networks, spamming, flooding or other such broadcasts or any other activity which may adversely affect Stacuity or any third party;
- use the Connectivity Services in any manner which could put Stacuity in breach of its agreements with third party suppliers after either being provided with a copy such agreements or being informed that your use or an End-User’s use is putting Stacuity in breach; and/or
5.5 – To ensure that we can provide you with the Connectivity Services you shall and shall ensure that any End-Users shall:
- ensure that where device certification or registration is required by Applicable Laws and/or our third party suppliers in a specific territory, all Devices using the Connectivity Services shall be certified or registered in accordance with such requirements;
- ensure that all Devices are in good working order, comply with any minimum requirements or specifications set out on the Website or Platform and are suitable for use with the SIMs; and
- comply with all Mobile Carrier Conditions.
5.6 – You acknowledge and agree that
- the Services
i. have not been designed to specifically meet your requirements or those of the End Users; and
ii. are expressly not intended for services which are essential for the preservation of life or other similarly critical applications;
- subject to the terms of this agreement and specifically clauses 5.2 and 12.7 you and the End Users are solely responsible for determining whether the use of the Services is appropriate for any particular application and will use all reasonable care in this determination.
6. General obligations
6.1 – You shall:
- co-operate with us in all matters relating to the Services;
- where you are a company, partnership or other corporate entity appoint a manager for the Services and communicate that individual’s identity to us, that person shall have the authority to contractually bind you on matters relating to the Services, the appointment of a manager by you will not diminish or undermine the signing authority of any other individual on your behalf in relation to this Agreement;
- provide to us in a timely manner all documents, information, items and materials in any form reasonably required by us to provide the Services or exercise our rights under the Agreement;
- comply with any user-manuals, guides or other information contained in the Documentation; and
- comply with any applicable policies or codes introduced by us from time to time. Such policies or codes to be provided to you when you access the Platform from time to time and shall be deemed accepted by you if you continue using the Platform.
6.2 – If our performance of our obligations under this Agreement is prevented or delayed by any act or omission of you, your agents, subcontractors, consultants or employees, then, without prejudice to any other right or remedy you may have, we shall not be liable for any failure to perform our obligations or shall be allowed an extension of time to perform our obligations equal to the delay caused by you (as applicable).
7. Price and payment
7.1 – The SIM Price, Platform Fee and Connectivity Charges will be available on the Price List. Where the Price List specifies that pricing is to be provided upon on request, please contact us and we will agree pricing with you in writing.
7.2 – We may increase our Charges from time to time by giving no less than 28 days’ notice to you. We do this by updating our Price List on our Website. The increased Charges will therefore take effect 28 days after the updated Price List is published on our Website and you shall be liable to pay all Charges based on the updated Price List from that point onwards.
7.3 – When purchasing any SIMs and/or when creating an Account you shall provide us with valid, up-to-date and complete payment details and any other relevant information we may require so that we may charge you through the payment method selected on the Website.
7.4 – Payment of all SIMs shall be due and payable immediately after making an Order for SIMs and you shall be charged using the payment details provided immediately. If for any reason we are not able to charge you, we may suspend or cancel your Order until we receive payment.
7.5 – You will be able to top up your Credit using the payment method selected on the Website from time to time to pay for the Services. Payment for the following Charges shall be debited from the Credit balance in the manner set out below:
- The Platform Fee on the date you activate your SIM and every month thereafter on or around the same date in respect of the provision of the Platform for the next month; and
- The Connectivity Charges as and when you use the Connectivity Services on a pay-as-you-go basis.
7.6 – You understand that where you have not topped up your Credit, you may have limited or no access to the Platform and/or Connectivity Services. You understand and agree that any unused Credit will expire 24 months after it is purchased without the right to receive a refund for that Credit.
7.7 – You accept that you shall be liable for all overages and surcharges which may be due in respect of any SIM provided pursuant to the terms of this Agreement, or any charges levied by any provider in respect of lost or damaged SIMs.
7.8 – In the event that any SIM is used in any way that attracts such charges, including without limitation, any charges for:
- use of data which exceeds any pre-purchased allowance;
- any other excessive use of data,
those charges will be passed on to you in full. You undertake to indemnify and hold harmless Stacuity on demand in relation to all such charges.
7.9 – Without prejudice to any other right or remedy that we may have, if you do not pay any sum due to us under this Agreement on the due date:
- You shall pay interest on the overdue sum from the due date until payment of the overdue sum, whether before or after judgment. Interest under this clause 9(a) will accrue each day at 8% a year above the Bank of England’s base rate from time to time, but at 8% a year for any period when that base rate is below 0%;
- We may suspend all or part of the Services until payment has been made in full.
7.10 – All sums payable under this Agreement:
- are exclusive of VAT, and you shall in addition pay an amount equal to any VAT chargeable on those sums on delivery of a VAT invoice; and
- shall be paid in full without any set-off, counterclaim, deduction or withholding.
8. Rights in relation to SIMs and Intellectual Property
8.1 – We and our licensors shall retain ownership of all right and title to physical SIMs. You accept that you receive the SIMs on licence and shall not acquire ownership of any SIMs provided under this Agreement.
8.2 – You accept that you shall be liable for all use of SIMs provided to you under this Agreement until such time as they are returned to us or deactivated by us (or any upstream supplier). As such, you shall be liable for any use of the SIMs, or any breach of this Agreement’s terms occasioned by such usage, whether or not that usage was authorised by us. You accept that you alone are responsible for managing access to and distribution of SIMs amongst the End-Users.
8.3 – We reserve the right to:
- deactivate any SIM which we suspect is being used in breach of the terms of this Agreement, or any applicable code of conduct (including, for the avoidance of doubt, where any individual SIM or group of SIMs has incurred overage charges which have not been settled within the timeframes specified by this Agreement);
- require the immediate return of any SIM which we suspect is being used in breach of the terms of this Agreement, or any applicable code of conduct (including, for the avoidance of doubt, where any individual SIM or group of SIMs has incurred overage charges which have not been settled within the timeframes specified by this Agreement).
8.4 – In relation to the SIMs:
- We and our licensors shall retain ownership of all Intellectual Property Rights in the SIMs;
- We grant to you a fully paid-up, worldwide, non-exclusive, royalty-free licence during the term of this Agreement to make use of the SIMs for the purpose of receiving and using the Services and the SIMs in accordance with the terms of this Agreement; and
- You shall not sub-license, assign or otherwise transfer the rights granted in clause 4(b) to any party, save for where expressly permitted by the terms of this Agreement.
9. Data protection
9.1 – For the purposes of this clause 9, the terms controller, processor, data subject, personal data, personal data breach and processing shall have the meaning given to them in the UK GDPR.
9.2 – Both parties will comply with all applicable requirements of the Applicable Data Protection Laws. This clause 9 is in addition to, and does not relieve, remove or replace, a party’s obligations or rights under Applicable Data Protection Laws.
9.4 – We do not anticipate that this Agreement will make either party a processor in relation to the other. In the event that assessment changes, we shall provide you with a data protection schedule, addendum or other similar documentation which will put in place any contractual measures necessary to ensure compliance with the requirements of the Applicable Data Protection Laws.
10. RIPA Compliance and Data Security
10.1 – Subject always to compliance with Applicable Data Protection Laws, you consent to us collecting data about your use of the Services and to us providing such data to any governmental or regulatory body in any fashion that is required in order to comply with any Applicable Laws (including any police investigation or warranted request for the provision of evidence).
10.2 – We shall comply with the Regulation of Investigatory Powers Act 2000 and similar or subordinate legislation or requirements made thereunder and as modified from time to time and you consent to us doing all such acts as may be required of us to comply with such requirements.
11.1 – Each party undertakes that it shall not at any time during or after this Agreement disclose to any person any confidential information concerning the business, affairs, customers, clients or suppliers of the other party or of any member of the group of companies to which the other party belongs, except as permitted by clause 2.
11.2– Each party may disclose the other party’s confidential information:
- to its employees, officers, representatives, contractors, subcontractors or advisers who need to know such information for the purposes of exercising the party’s rights or carrying out its obligations under or in connection with this Agreement (“Permitted Recipients”). Each party shall ensure that Permitted Recipients to whom it discloses the other party’s confidential information comply with this clause 11; and
- as may be required by law, a court of competent jurisdiction or any governmental or regulatory authority.
11.3 – Neither party shall use any other party’s confidential information for any purpose other than to exercise its rights and perform its obligations under or in connection with this Agreement.
12.1 – This clause 12 sets out the entire liability of each party (including any liability for the acts or omissions of its employees, agents and subcontractors) to the other in respect of any loss or damage suffered by the other which arises from its subject matter, whether the same arises from any breach of contract, tortious act, breach of statutory duty, or otherwise, and irrespective of how such loss or damage is claimed, or whether either party foresaw or was made aware of the possibility of it.
12.2 – Nothing in this Agreement shall exclude or limit either party’s liability for:
- death or personal injury caused by that party’s negligence;
- fraud or fraudulent misrepresentation;
- any other liability which cannot be lawfully limited or excluded.
12.3 – No limitations on liability shall apply to your liability to pay any Charges due pursuant to the terms of this Agreement, nor for any liability to pay interest due thereon.
12.4 – We shall not be liable to you or any third party for:
- any indirect or consequential loss or damage;
- any loss, howsoever arising, which relates to loss of: revenues, profits, contracts, business, data, use of money, or any failure to make any anticipated saving or wasted expenditure; and
- any loss of goodwill or reputation.
12.5 – We shall not be liable to you or any third party for or loss or damage suffered or incurred by you which arise from or are connected with:
- The actions or omissions of you or End-Users; and
- The actions or omissions of any third party which provided support and/or facilitated the Services.
12.6 – Our total and aggregate liability to you arising under or in connection with this Agreement shall be limited to 300% of the total sums paid by you to us under this Agreement.
12.7 – The Services are provided on an ‘as is’ and ‘as available’ basis and we do not warrant that:
- the Services will be available at all times and your use of the Services will be uninterrupted and error-free;
- the Services will meet your requirements or be fit for any purpose whether specified by you, known to us or reasonably foreseeable by us; and
- the Services will be free from virus and vulnerabilities.
12.8 – Except as expressly and specifically provided in this Agreement, all warranties, representations, conditions and all other terms of any kind whatsoever implied by statute or common law are, to the fullest extent permitted by applicable law, excluded from this Agreement.
12.9 – You shall indemnify us against all liabilities, costs, expenses, damages and losses (including but not limited to any direct, indirect or consequential losses, loss of profit, loss of reputation and all interest, penalties and legal costs (calculated on a full indemnity basis) and all other professional costs and expenses) suffered or incurred by us arising out of or in connection with any claim made against us by a third party arising out of or in connection with the provision of the Services to the extent that such claim arises out of the breach, negligent performance or failure or delay in performance of this Agreement.
13. Term and Termination
13.1 – This Agreement commences on the Commencement Date and thereafter shall continue until terminated in accordance with the provisions of this clause 13.
13.2 – Without affecting any other right or remedy available to it, we may terminate this Agreement with immediate effect by giving you written notice where:
- you commit a material breach of any term of this Agreement and (if such breach is remediable) you fail to remedy that breach within a period of 30 days after being notified in writing to do so;
- if you are a company, partnership or other corporate entity, you take any step or action in connection with entering administration, provisional liquidation or any composition or arrangement with your creditors (other than in relation to a solvent restructuring), applying to court for or obtaining a moratorium under Part A1 of the Insolvency Act 1986, being wound up (whether voluntarily or by order of the court, unless for the purpose of a solvent restructuring), having a receiver appointed to any of your assets or ceasing to carry on business or, if the step or action is taken in another jurisdiction, in connection with any analogous procedure in the relevant jurisdiction;
- you suspend, or threaten to suspend, or cease or threaten to cease to carry on all or a substantial part of your business;
- if you are an individual, you are subject to a bankruptcy petition, application or order;
- your financial position deteriorates to such an extent that in our reasonable opinion your capability to adequately fulfil your obligations under the Agreement has been placed in jeopardy;
- we cease to make or can no longer make our Services available;
- where required by Applicable Laws;
- where it is necessary to terminate the Agreement in order to protect our legitimate business interests and it is not viable to terminate the Agreement in accordance with clause 13.3.
13.3 – We may terminate this Agreement on giving not less than 90 days’ written notice to you.
13.4 – You may terminate this Agreement on giving not less than 90 days’ written notice to us.
13.5 – Where we have the right to terminate the Agreement pursuant to clause 13.2, we may without prejudice to such rights choose to suspend the Agreement (and your rights under it) for such period as we deem necessary with a view to remedying any such issue in relation to which the right to terminate arose.
14. Obligations on termination and survival
14.1 – Obligations and Rights on termination or expiry
On termination or expiry of this Agreement:
- all rights granted to you under this Agreement shall immediately cease;
- you shall immediately pay to us all outstanding unpaid Charges which have accrued prior to the date of termination;
- you shall immediately pay to use all Charges reasonably incurred by us in connection with the termination of the Agreement;
- Where requested by us, you shall immediately return all SIMs provided under the terms of this Agreement; and
- We shall be entitled to deactivate all SIMs immediately and without notice.
14.2 – Survival
- Any provision of the Agreement that expressly or by implication is intended to come into or continue in force on or after termination or expiry of the Agreement shall remain in full force and effect.
- Termination or expiry of this Agreement shall not affect any rights, remedies, obligations or liabilities of the parties that have accrued up to the date of termination or expiry, including the right to claim damages in respect of any breach of the Agreement which existed at or before the date of termination or expiry.
15. Force Majeure
15.1 – Event means any circumstance not within a party’s reasonable control including, without limitation: acts of God, flood, drought, earthquake or other natural disaster; epidemic or pandemic; terrorist attack, civil war, civil commotion or riots, war, threat of or preparation for war, armed conflict, imposition of sanctions, embargo, or breaking off of diplomatic relations; nuclear, chemical or biological contamination or sonic boom; any law or any action taken by a government or public authority, including imposing an export or import restriction, quota or prohibition, or failing to grant a necessary licence or consent; collapse of buildings, fire, explosion or accident; interruption or failure of utility service (including without limitation any part of any telecommunications, information or data services network).
15.2 – We shall not be in breach of this Agreement or otherwise liable for any such failure or delay in the performance of our obligations, if we are prevented, hindered or delayed in or from performing any such obligations under this Agreement by a Force Majeure Event.
16. Assignment and other dealings
16.1 – This Agreement is personal to you, and you shall not assign, transfer, mortgage, charge, subcontract, delegate, declare a trust over or deal in any other manner with any of your rights and obligations under this Agreement.
16.2 – We may at any time assign, mortgage, charge, declare a trust over or deal in any other manner with any or all of our rights under this Agreement.
17.1 – We may vary the terms of this Agreement to reflect changes to the law, our business, services or products, or for any other reason we deem appropriate, acting reasonably. Where the terms of this Agreement are varied, the new terms shall be displayed to you when you next access your Account and such variation shall be deemed to be accepted and take effect if you continue to use the Services.
17.2 – Save as set out in clause 1, no variation of this Agreement shall be effective unless it is in writing and signed by the parties (or their authorised representatives).
18.1 – A waiver of any right or remedy under this Agreement or by law is only effective if given in writing and shall not be deemed a waiver of any subsequent right or remedy.
18.2 – A failure or delay by a party to exercise any right or remedy provided under this Agreement or by law shall not constitute a waiver of that or any other right or remedy, nor shall it prevent or restrict any further exercise of that or any other right or remedy. No single or partial exercise of any right or remedy provided under this Agreement or by law shall prevent or restrict the further exercise of that or any other right or remedy.
19. Rights and remedies
The rights and remedies provided under this Agreement are in addition to, and not exclusive of, any rights or remedies provided by law.
20.1 – If any provision or part-provision of this Agreement is or becomes invalid, illegal or unenforceable, it shall be deemed deleted, but that shall not affect the validity and enforceability of the rest of this Agreement.
20.2 – If any provision or part-provision of this Agreement is deemed deleted under clause 1 we shall introduce a replacement provision that, to the greatest extent possible, achieves the intended commercial result of the original provision.
21. Entire agreement
21.1 – This Agreement constitutes the entire agreement between the parties and supersedes and extinguishes all previous agreements, promises, assurances, warranties, representations and understandings between them, whether written or oral, relating to its subject matter.
21.2 – Each party agrees that it shall have no remedies in respect of any statement, representation, assurance or warranty (whether made innocently or negligently) that is not set out in this Agreement. Each party agrees that it shall have no claim for innocent or negligent misrepresentation or negligent misstatement based on any statement in this Agreement.
22. No partnership or agency
22.1 – Nothing in this Agreement is intended to, or shall be deemed to, establish any partnership or joint venture between the parties, constitute either party the agent of the other party, or authorise a party to make or enter into any commitments for or on behalf of the other party.
22.2 – Each party confirms it is acting on its own behalf and not for the benefit of any other person.
23. Third party rights
23.1 – This Agreement does not give rise to any rights under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of this Agreement.
24. Governing law
This Agreement and any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with it or its subject matter or formation shall be governed by and construed in accordance with the law of England and Wales.
Each party irrevocably agrees that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with this Agreement or its subject matter or formation.