1. Definitions and Interpretation
1.1 In these Terms and Conditions the following words and phrases will have the meanings given below, unless the context in which they are used requires a different meaning:
“Aggregated Allowance” means the total data allowance for all SIM Cards on Aggregated Tariff calculated as follows: total allowance = data allowance per SIM Card x number of SIM Cards on an Aggregated Tariff;
“Aggregated Tariff” means a tariff whereby a number of SIM Cards on the same network, tariff and data allowance are identified as ‘aggregated’ in a tariff addendum form;
“Agreement” means these Terms and Conditions together with the Customer Framework Agreement Form;
“APN” is an abbreviation for ‘Access Point Name’ and means the point where a mobile device can enter an IP network;
“Applicable Law(s)” means
(i) any applicable statute, regulation, order, statutory instrument or other enactment having the force of law (whether local, governmental or otherwise); or
(ii) the common law of England and Wales; or
(iii) the order of any court or tribunal of competent jurisdiction; or
(iv) any final or provisional order, direction, notice, specification, designation, consent or pending decision of or from the Office of Communication (Ofcom) or any other relevant regulatory or governmental organisation
and in each of (i) to (iv) as may be amended from time;
“Business Day” means a day (other than a Saturday, Sunday or a public holiday in England) on which clearing banks are open for business in the City of London;
“Cancellation Request Form” means a form provided to the Customer on request, the completion, signature and submission of which is required for the Customer to terminate this Agreement;
“Charges” means the amounts payable for the provision of the Services, calculated pursuant to the provisions of the Agreement and in accordance with the Tariff (including any over usage charges pursuant to Clause 12.6);
“Code of Practice” means all guidelines governing use or provision of mobile telecommunications and data services that are issued by any generally recognised bodies or that are adopted by InfiSIM and/or the relevant Network Provider(s) from time to time, and all instructions regulations or guidance issued by the Regulatory Authorities, whether or not mandatory;
“Combined Offering” means an offering by the Customer to an End User that includes both value added reseller services and SIM Card(s);
“Commencement Date” means the date of commencement of the provision of Services to the SIM Card(s) by InfiSIM;
“Customer” means the person named as such and whose details are set out on Customer Framework Agreement Form;
“Customer Framework Agreement Form or CFA” means the Customer Framework Agreement Form attached to these Terms and Conditions together with (if applicable) any relevant connection schedule, tariff addendum form and customer solutions Addendum pursuant to which InfiSIM provides the Services to the Customer;
Data Protection Laws means all laws relating to data protection and privacy which are from time to time applicable to the Company (or any part of their business), including: (i) the Data Protection Act 1998 and all other applicable national laws, regulations and secondary legislation implementing European Directive 95/46/EC; (ii) the GDPR and all related national laws, regulations and secondary legislation, including the Data Protection Act 2018; and (iii) the Privacy and Electronic Communications (EC Directive) Regulations 2003 (SI 2003/2426) and all other applicable national laws, regulations and secondary legislation implementing European Directive 2002/58/EC, in each case as amended, replaced or updated from time to time and together with any subordinate or related legislation made under any of the foregoing.
“Delivery Address” has the meaning given in Clause 3.2;
“Documents” means all records, reports, documents, papers and other materials whatsoever which the Customer may provide to InfiSIM pursuant to the Agreement;
“Downgrade” means a change in the Tariff to a tariff that has a lower price and/or data allowance;
“Equipment” means the approved device and SIM and/or eSIM connected to the Systems
“End User” means the person who is the end user of each SIM Card which can be either the Customer itself, or if the Customer is a Systems Integrator or other Third Party Supplier, the end user of the SIM Card in the product or service provided by that Systems Integrator of Third Party Supplier;
“eSIM” means technology that can be embedded into devices or delivered as a traditional removeable SIM;
“Fault” means any malfunction or other fault which prevents a SIM Card from operating properly;
“Force Majeure Event” means an event beyond the control of a Party (or any person acting on its behalf), which by its nature could not have been foreseen by such Party (or such person), or, if it could have been foreseen, was unavoidable, and includes, without limitation, acts of God, storms, floods, riots, fires, epidemic, sabotage, civil commotion or civil unrest, interference by civil or military authorities, acts of war (declared or undeclared) or armed hostilities or other national or international calamity or one or more acts of terrorism or failure of energy sources;
“GDPR” means the General Data Protection Regulation, Regulation (EU) 2016/679 as it forms part of domestic law in the United Kingdom by virtue of section 3 of the European Union (Withdrawal) Act 2018 (including as further amended or modified by the laws of the United Kingdom or a part from time to time);
“General Conditions” means the general conditions of entitlement set by OFCOM, in accordance with section 45 of the Communications Act 2003, as may be amended, modified or replaced from time to time;
“Customer Support” means the remote support services to be provided by InfiSIM as set out in Clause 14 which can be accessed by the Customer on the phone number and/or email address detailed in the Customer Framework Agreement Form;
“InfiSIM” means InfiSIM Limited, a company registered in England and Wales with number 09990890 together with its successors in title and permitted assigns from time to time;
“Intellectual Property Rights” means the following items (including any extensions or renewals thereof) and wherever in the world enforceable (i) rights in, and in relation to, any patents, registered designs, design rights, trade marks, trade and business names (including all goodwill associated with any trade marks or trade and business names), copyright, moral rights, databases, domain names and including the benefit of all registrations of, applications to register and the right to apply for registration of any of the foregoing items and all rights in the nature of any of the foregoing items, each for their full term (including any extensions or renewals thereof) and wherever in the world enforceable; (ii) rights in the nature of unfair competition rights and to sue for passing off; and (iii) trade secrets, confidentiality and other proprietary rights, including rights to know how and other technical information;
“Machine to Machine Services” any service which involves a communication of data through a closed and private network between a device and one preconfigured application;
“Nova Platform” means InfiSIM’s Sim Management Platform
“Minimum Contract Term” means the ‘Length of Contract’ detailed in the Customer Framework Agreement Form which in no circumstances shall be less than a period of twenty four (24) months starting on the Commencement Date;
“MVNO” means Mobile Virtual Network Operator;
“Network Provider” means the network telecommunications operator that provides connectivity and airtime services to the SIM Card(s) via its agreement with InfiSIM;
“Notice” means any notice, demand, consent or other communication given by one Party to the other Party in relation to this Agreement;
“Order Enquiry” means an enquiry for Deliverables by a Customer in accordance with Clause 2.1;
“Order Form” means the Customer’s order for the Deliverables from InfiSIM which shall be set out on the front page of the CFA once an Order Enquiry has been accepted by InfiSIM in accordance with Clause 2.1;
“Party” means each of InfiSIM and the Customer and “Parties” shall be interpreted accordingly;
“Personal Data” means as defined under the Data Protection Laws;
“Private APN” means the private APN that gives a Customer direct access to their LAN and allows the Customer to specify certain parameters such as the private address space allocated to the devices & RADIUS server attributes for user authentication. The Customer, its customers and End Users are also able to access the Internet through the Public APN unless expressly agreed otherwise;
“Public APN” means a Network Provider’s public APN. When the SIM card is enabled for data e.g. GPRS/3G etc the public APN is added by default. The Public APN is open for everyone to use and its use is subject to payment of the Charges;
“Regulatory Authorities” means the relevant regulatory bodies including those authorised to regulate electronic communications or telecommunications services, privacy, data protection, consumer protection or advertising in the relevant territory;
“RPI” means the Retail Prices Index (all items) published by the Office for National Statistics;
“Services” means the provision of mobile telecommunications connectivity airtime and data usage services to the SIM Card(s) in accordance with the terms of the Agreement together with the provision of such other value added services as may be agreed in writing between the Parties from time to time;”SIM Card(s)” shall also include e-SIM and means the ‘subscriber identity module'(s) supplied by InfiSIM to the Customer pursuant to this Agreement with details set out in the Order that allows the Customer to access and use the Services (each SIM Card supplied by InfiSIM remains InfiSIM’s property, or the property of the relevant Network Provider, and at no time shall title or property in a SIM Card transfer to the Customer);
“System(s)” means the hardware, software and public telecommunications systems run by InfiSIM, the relevant Network Provider(s) or another network operator in order to provide the Services;
“Systems Integrator or other Third Party Supplier” means any person who combines the Services with other services, equipment or software for onward supply to one or more Third Parties;
“Tariff” means the charging plan chosen by the Customer which is specified in the Customer Framework Agreement Form with any relevant addendums which determines the data usage rates that the Customer will pay for Services;
“Tariff Change” means a Downgrade or an Upgrade as agreed between the Parties in accordance with Clause 7.3;
“Term” has the meaning set out in Clause 6;
“Terms and Conditions” means these terms and conditions of business;
“Third Party” means any person who is not a Party;
“Third Party Service Provider” means supplier to, or contractors, of InfiSIM, which are not owned or operated by InfiSIM;
“Trial Service” means the Services provided on a trial basis for the period of months indicated in the Minimum Contract Term box in the Customer Framework Agreement Form. E.g. 2 months where written as ‘2+24’;”Upgrade” means a change in a Tariff to a tariff with a higher cost and/or higher data allowance;
“VAT” or “Value Added Tax” means value added tax as provided in the Value Added Tax Act 1994 and any other tax of a similar nature; and
1.2 In the Agreement, unless the context otherwise requires:
(a) words in the singular include the plural and vice versa and words in one gender include any other gender;
(b) a reference to a statute or statutory provision includes:
(i) any subordinate legislation (as defined in Section 22(1), Interpretation Act 1978) made under it;
(ii) any repealed statute or statutory provision which it re-enacts (with or without modification); and
(iii) any statute or statutory provision which modifies, consolidates, re-enacts or supersedes it whether such statute or statutory provision comes into force before or after the date of the Agreement, except to the extent that it comes into force after the date of the Agreement and would impose any new or extended obligation, liability or restriction on or otherwise adversely affect the rights of any Party;
(c) a reference to:
(i) any Party includes its successors in title and permitted assigns;
(ii) Clauses is to Clauses of these Terms and Conditions;
(d) where the words “includes”, “including” or “in particular” are used in these Terms and Conditions, they are deemed to have the words “without limitation” following them and where the context permits, the words “other” or “otherwise” are illustrative and shall not limit the sense of the words preceding them;
(e) any obligation in the Agreement on a person not to do something includes an obligation not to agree, allow, permit or acquiesce in that thing being done; and
(f) references to any English legal term for any action method of judicial proceedings, legal document, legal status, court official or any legal concept or thing shall in respect of any jurisdiction other than England be deemed to include the nearest approximate in that jurisdiction to the English legal term.
2. The Services
2.1 InfiSIM shall use its reasonable endeavours to provide the Services, but InfiSIM’s ability to do so may be affected by a number of factors which are beyond its control, including:
(a) the capability of the equipment with which the SIM Card(s) are used;
(b) network over utilisation;
(c) geographic or atmospheric conditions;
(d) maintenance requirements; and
(e) equipment failures.
2.2 Any coverage maps issued by InfiSIM or the Network Providers are a reasonable estimate of the coverage available in an area at the time the map is printed, and are in no way any guarantee of network availability or coverage.
2.3 InfiSIM may, at its sole discretion and at any time:
(a) limit or cap the amount of Charges the Customer is able to incur during any given billing period; and/or
(b) suspend the provision of Services to any SIM Card being used on any overseas networks.
If the Customer wishes to vary any limit or cap pursuant to 2.3(a) or enable the use of the SIM Card on any overseas networks pursuant to 2.3(b) the Customer should contact InfiSIM to discuss the matter further. Subsequent changes are at InfiSIM’s discretion.
2.4 The Customer acknowledges that InfiSIM may undertake, and the Customer consents to InfiSIM undertaking credit checks to determine the Customer’s creditworthiness and that InfiSIM may refuse to accept any Customer Framework Agreement Form from the Customer, or vary any existing Customer Framework Agreement Form terms and/or usage limits (including where appropriate) suspending the provision of Services to any one or more SIM Cards, where InfiSIM in its discretion determines that the creditworthiness of the Customer warrants InfiSIM taking such action.
2.5 InfiSIM may at any time require the payment of a non-interest bearing deposit:
(a) as a condition of delivering, or continued delivery of, the Services, to one or more SIM Cards, to the Customer;
(b) to release any bar on a SIM card being used on overseas networks;
(c) as a condition of increasing any maximum limit imposed by InfiSIM on the amount of Charges the Customer may incur; or
(d) as security for the payment of Charges due pursuant to the terms of the Agreement.
The deposit will not normally exceed more than four (4) months Charges calculated by reference to the Customer’s actual usage of the Services or, if InfiSIM directs, such other sum as InfiSIM in its sole discretion determines. Any deposit paid by the Customer will be repaid when the Agreement ends or earlier if InfiSIM agrees to such repayment (but InfiSIM reserves the right in its sole discretion in such circumstances to reinstate any bar or other limit in force in respect of the Customer).
3. Delivery of the SIM Cards
3.1 Any forecasted time or period for delivery of any SIM Cards given by InfiSIM shall be given in good faith but shall be an estimate only and InfiSIM shall not be liable for any delay in delivery or any consequential loss or other loss arising therefrom.
3.2 SIM Cards will be delivered to the Customer (either by post or by other carrier) to the shipment/delivery address stated in the Customer Framework Agreement Form unless expressly agreed otherwise in writing (“Delivery Address”). The risk of loss of or damage to the SIM Cards shall pass to the Customer at the time the SIM Cards are posted by or on behalf of InfiSIM or its agent to the Customer.
3.3 The Charges payable under the Agreement relate to the provision of the Services and do not relate to the sale of the SIM Cards.
3.4 The Customer shall pay the cost of delivering the SIM Cards to the Delivery Address and costs of packaging the same. Such costs are set out in the sales order form and/or may be notified to the Customer from time to time by or on behalf of InfiSIM.
3.5 If there is a failure to accept delivery of the SIM Cards at the Delivery Address by the Customer, InfiSIM shall be entitled without prejudice to any other rights it may have to store the SIM Cards at the cost and risk of the Customer. Any costs arising in respect of such storage or re-supply of the SIM cards shall be paid in full by the Customer.
3.6 InfiSIM shall take reasonable care to ensure that the SIM Cards are delivered to or collected by the postal authorities or other carriers in a condition suitable for delivery to the Delivery Address but subject thereto it accepts no liability for damage to or loss or shortage of any SIM Cards occurring during the course of delivery or for any loss or damage arising directly or indirectly therefrom.
3.7 Any claim in respect of any loss or theft of or damage to the SIM Cards in the course of their delivery shall be made by the Customer within seven days of the scheduled receipt of the SIM Cards at the Delivery Address. Any shortages of SIM Cards delivered to the Delivery Address must be notified to InfiSIM in writing within two days of delivery to the Delivery Address.
3.8 Notwithstanding the delivery and the passing of risk in the SIM Cards, all SIM Cards supplied to the Customer, pursuant to the Agreement shall at all times remain the property of InfiSIM or the relevant Network Provider that supplied such SIM Cards to InfiSIM, and shall be returned to InfiSIM upon termination of the Agreement at the Customer’s cost and risk. Failure to return a SIM card shall incur a charge for each SIM Card not returned.
4.1 If the Customer requests the Private APN to be enabled, unless the Customer expressly states in writing by email to InfiSIM that they do not want the Public APN enabled, as a default the Public APN will be enabled. The Customer acknowledges that the use of the Public APN by an End User may incur Charges. If the Customer requests the Public APN to be disabled during the Minimum Contract Term, InfiSIM shall use its reasonable endeavours to disable the Public APN:
(a) for 1-5 SIM Cards, within:
(i) twenty four (24) hours of receiving an email from the Customer between 9.00am to 16.00pm GMT/BST on a business day; and
(ii) twenty four (24) hours of the start of business hours on the business day following the receipt of an email from the Customer where such email was received by InfiSIM between 16.01pm and 8.59am GMT/BST.
(b) for 6 – 50 SIM Cards, within ten (10) business days of receiving an email from the Customer; and
(c) for over fifty-one (51) SIM Cards InfiSIM shall provide the time period on receiving an email from the Customer.
The Customer acknowledges that it will be responsible for all Charges incurred up to the disabling of the Public APN taking effect in accordance with the timeframe set out in this Clause.
4.2 If the Customer requests that the Private APN is enabled it is the Customer’s responsibility to ensure their device is configured correctly so it can use the InfiSIM Private APN.
4.3 By returning the customer solutions addendum , the customer acknowledges and agrees to InfiSIM’s Terms and Conditions.
5. Obligations of the Customer
Warranties and Representations:
5.1 The Customer represents and warrants at all times to InfiSIM as follows:
(a) it is a validly existing entity incorporated or existing under the laws of the country in which it is located;
(b) it has the power and authority to enter into and perform and has taken all necessary action (including all necessary consents, authorisations, licences and approvals) to authorise the entry into, performance and delivery of the Agreement which upon execution will constitute a legal, valid and binding obligation of the Customer enforceable in accordance with its terms;
(c) the entering into and performance of its obligations under this Agreement has been duly authorised by all necessary corporate action on its part; and
(d) neither the execution or delivery of the Agreement nor the consummation of the transactions contemplated hereby will conflict with:
(i) any Applicable Law to which the Customer is subject; or
(ii) the Customer’s constitutional documents; or
(iii) any existing obligation binding on the Customer or on any asset of the Customer.
What the Customer must do:
5.2 The Customer acknowledges that the System is operated under license and by agreement with the Network Providers and that the provisions of the said licenses and agreements apply to the use of the Services by the Customer. The Customer warrants that it shall and shall procure that each of its customers and End Users does likewise:
(a) observe and comply with all Applicable Laws and Codes of Practice (including obligations applicable if any related service offered by the Customer means that either InfiSIM and/or a Customer is a provider of electronic communications, telecommunications, value added or related services) and any instructions or conditions notified to the Customer by InfiSIM, which in InfiSIM or any Network Provider’s reasonable opinion prevent:(i) the transmission of illegal material; or (ii) the Systems from being impaired or damaged;
(b) comply with any reasonable instructions (including specifications and training) issued by InfiSIM and/or the relevant Network Provider(s) from time to time for the use and/or marketing of the Services;
(c) ensure that any information provided to InfiSIM is accurate, complete and provided in a timely manner and shall inform InfiSIM of any changes to such information;
(d) only market to and solicit customers and End Users using staff contracted to or employed directly by itself;
(e) identify, where relevant, InfiSIM and (if requested by InfiSIM, the relevant Network Provider(s)) in proposals to its customers and End Users which include the Services.
(f) promptly advise InfiSIM by telephone and in writing in the event of any loss or theft of the SIM;
What the Customer must not do:
(g) not to directly or indirectly be involved, or knowingly, recklessly or negligently permit any other person to be involved, in any fraud, illegal or immoral activity in connection with the Customer’s use of the Mobile Network Services and shall notify InfiSIM immediately upon becoming aware of any such activity.
(h) not to contravene the General Conditions or any other relevant regulations or licences granted thereunder and otherwise not to contravene, and not by any act or omission or use of the Services, cause InfiSIM to contravene, any Relevant Laws or General Conditions.
(i) use any equipment that has not been approved for use in connection with the Services by InfiSIM and the relevant Network Provider(s) and if the Customer is not sure whether the Customer’s equipment is so approved, to notify InfiSIM immediately. InfiSIM reserves the right, at its sole and absolute discretion, to require the Customer to satisfy InfiSIM that any equipment to be used in connection with the Services is fit for purpose and suitable and the Customer undertakes to InfiSIM to comply with InfiSIM’s testing and other requirements in respect of the same.
(j) not act or omit to act in any way which will or may place InfiSIM and/or the relevant Network Provider(s) in breach of any provisions of the Applicable Law or a Code of Practice, any other licences, authorisations, applicable to InfiSIM and/or the relevant Network Provider(s) and co-operate fully with InfiSIM to enable InfiSIM and/or the relevant Network Provider(s) (as the case may be) to comply with all of the same;
(k) not use or permit use of the Services for any improper, immoral or unlawful purpose including without limitation the use of unauthorised or unlawful SIM gateways;
(l) not act or omit to act in any way which will or may injure or damage any persons or the property of any persons (whether or not employees agents or representatives of InfiSIM or any one or more Network Providers), the Systems or howsoever cause the quality of the Services to be impaired
Terms to include in End User contracts
5.3 The Customer shall ensure, and shall use all reasonable endeavours to procure that, its customers and each End User is legally bound by all the obligations set out in the Agreement, which expressly or by implication relate to such customers and End Users, before the Customer, the Customer’s customers or End Users receive any benefit of the Services. Furthermore, a breach by the Customer’s customers or End Users of any of the terms of their agreement with such customer shall be deemed to be a breach by the Customer of this Agreement.
5.4 In addition to Clause 5.3, the Customer shall also include in its agreements with its customers and End Users:
(a) a statement that the Customer and not InfiSIM will provide support for the Services, Systems and any other services and systems provided by the Customer to its Customer and End Users;
(b) sufficient permission to enable InfiSIM and the relevant Network Provider(s) to process information relating to its customers and End Users as contemplated by this Agreement; and
(c) a disclaimer, to the extent permitted by Applicable Law, of all warranties (including any warranties implied by law) by InfiSIM and the relevant Network Provider(s) and any liability by InfiSIM and the relevant Network Provider(s) for any damages, whether direct, indirect, or consequential, arising from the sale or use of the Services, Systems and any other services and systems provided by the Customer to its customer and End Users.
5.5 The Customer is only permitted to use the Services as part of a Combined Offering for its internal use or as part of its own value-add product or service. The Customer shall not resell one or more elements of the Services as a standalone product or service. The Customer shall ensure, and use all reasonable endeavours to ensure that its customers and each End User does likewise, that any Services supplied under the Agreement shall be used solely in relation to Machine to Machine Services and shall not use the Services to take any action that:
(a) involves the transmission of voice (including VOIP) unless expressly agreed otherwise;
(b) involves providing any service via the Services that allows an End User or other person to access a publicly addressable destination (i.e. public IP address) including through the use of a proxy, tunnelling, a gateway or routing;
(c) would violate copyright, a trademark, a trade secret or other property rights of any third party;
(d) could interfere with other users’ use of InfiSIM’s and/or the relevant Network Provider(s)’ network;
(e) involves the addition, removal or modification of identifying network header information in an effort to deceive;
(f) uses the Services to access, or attempt to access, the accounts of others, or to penetrate, or attempt to penetrate, security measures of InfiSIM’s and/or the relevant Network Provider(s)’ or another entity’s computer software or hardware, electronic communications system, or telecommunications system, whether or not the intrusion results in the corruption or loss of data;
(g) uses the Services or software related to Internet relay chat (“IRC”), peer to peer file sharing (“P2P”), bit torrent, game servers or proxy server network;
(h) involves spamming or the sending of bulk unsolicited emails or commercial messages or maintaining an open SMTP relay; and/or
(i) could lead directly to death, personal injury, or severe physical injury or environmental damage (for example life support machines) due to the failure of the Services.
No partnership or agency
5.6 The Customer shall not represent itself as an agent of InfiSIM or any one or more Network Providers for any purpose, nor give any condition or warranty or make any representation on InfiSIM or any one or more Network Providers’ behalf or commit InfiSIM or any one or more Network Providers to any contracts. The Customer shall not without InfiSIM’s prior written consent make any representations, warranties, guarantees or other commitments with respect to the specifications, features or capabilities of the Services which are inconsistent with those contained in the material supplied by InfiSIM or any one or more Network Providers or otherwise incur any liability on behalf of InfiSIM or any one or more Network Providers.
5.7 If the Customer acts as a Systems Integrator or other Third Party Supplier the Customer shall keep detailed up-to-date records of all acts and things done by the Customer in relation to the provision of the Services to the Customer’s customers and End Users during the Term and for a period of six (6) years thereafter, and at InfiSIM’s request, shall make such records available for inspection and/or provide copies to InfiSIM.
Requesting a bar to be applied to a SIM Card
5.8 The Customer acknowledges that if it requests a bar to be applied to any SIM Card, for any reason, that such bar will become effective within twenty four (24) hours of InfiSIM notifying the relevant Network Provider. InfiSIM shall notify the relevant Network Provider as follows:
(a) for 1-5 SIM Cards, within:
(i) three (3) hours of receiving an email from the Customer between 9.00am to 16.00pm GMT/BST on a business day; and
(ii) three (3) hours of the start of the business day following the receipt of an email from the Customer where such email was received by InfiSIM between 16.01pm] and 8.59am GMT/BST; and
(b) for over six (6) SIM Cards, within:
(i) twenty four (24) hours of receiving an email from the Customer between 9.00am to 16.00pm GMT on a business day; and
(ii) twenty four (24) hours of the start of business hours on the business day following the receipt of an email from the Customer where such email was received by InfiSIM between 16.01pm and 8.59am GMT.
5.9 The Customer acknowledges that it will be responsible for all Charges incurred up to a bar taking effect in accordance with the time-frame set out in this Clause.
5.10 For SIM Cards with an Aggregated Tariff the Customer agrees to comply with the Aggregated Allowance. The Customer shall be liable to pay InfiSIM for all data usage charges in excess of the Aggregated Allowance; such charges to be calculated by reference to InfiSIM’s standard charges from time to time without taking into account any discount or other saving that would have applied by reference to the aggregated Tariff applicable to the relevant SIM Card(s).
5.11 InfiSIM shall be entitled to rely on the Customer’s non-compliance with any of the Customer’s obligations in this Clause 5 as relieving InfiSIM’s performance under the Agreement if such non-compliance restricts or precludes performance of the Services by InfiSIM.
6.1 Subject to Clauses 6.2 and 6.3 or earlier termination under Clause 23, this Agreement shall commence from the date each SIM is activated and shall continue in force for the Minimum Contract Ter. Thereafter the Agreement shall automatically continue and renew for further periods of twelve (12) months (Subsequent Term) unless and until the Customer provides InfiSIM with ninety (90) days written notice of termination, such notice not to take effect until the end of the Minimum Contract Term or the Subsequent Term.
6.2 Where a Trial Service is provided to the Customer, the Agreement shall continue from the earlier of (i) the date of signature of the Customer Framework Agreement Form by the Customer and (ii) the Commencement Date for the duration of the Trial Service and unless the Customer gives written notice to InfiSIM that it does not wish to continue beyond the end of the Trial Service, such notice to be received at least seven (7) days before the end of the Trial Service, shall continue thereafter in accordance with Clause 6.1.
6.3 If a Customer has a Tariff Change, such Tariff Change shall be applicable from the 1st of the month following the month in which InfiSIM receives a tariff addendum and/ or a customer solutions addendum. If however the SIMS are tariff changing to an existing tariff, an email is sufficient as confirmation When a Tariff Change occurs the relevant SIM Cards shall be subject to a new Minimum Contract Term from the date the Tariff Change becomes effective in accordance with this Clause 6.3 and thereafter shall continue unless and until terminated by either Party in accordance with Clauses 23.1(a) or 23.3.
7.1 InfiSIM’s quotation for provision of the Services is merely an invitation for an order subject to the Agreement and shall be generated following receipt of an Order Enquiry for Services. As part of the Order Enquiry, the Customer shall be required to electronically sign the CFA to create an Order Enquiry. By signing or electronically signing the Customer Framework Agreement Form, connection schedule, and/or tariff addendum form and using the Services the Customer accepts, and agrees to be bound by, the terms of the Agreement.
7.2 InfiSIM shall be under no obligation to accept any such Order Enquiry. If, however, InfiSIM does accept the Order Enquiry, it shall confirm this to the Customer and an Order shall be created. Once an Order is accepted and created, it shall be legally binding to the Customer.
7.3 The Customer may request a Tariff Change for any of the SIM Cards provided under this Agreement by completing a Customer Framework Agreement Form and indicating that such form relates to a Tariff Change as follows:
(a) for an Upgrade at any time during the Term; and
(b) for a Downgrade at any time after the expiry of the Minimum Contract Term.
8. Obligations of InfiSIM
8.1 InfiSIM shall provide the Services to the Customer for the Term in accordance with the provisions of the Agreement.
8.2 InfiSIM shall provide the Services:
(a) in a professional and workmanlike manner; and
(b) in compliance with all Applicable Laws.
9. Supplier’s Warranties and Faults
9.1 InfiSIM warrants that subject to the provisions of Clauses 2 and 5 that:
(a) the SIM Cards shall be free of material defects for a period of twelve (12) months from the Commencement Date;
(b) the Services will be performed with reasonable skill and care; and
(c) so far as it is able, InfiSIM will transfer to the Customer the benefits of all warranties or guarantees in relation to the SIM Cards which InfiSIM receives from the relevant Network Provider(s).
9.2 InfiSIM warrant (“Warranty”) that SIM Cards will not fail within the period starting on the date of delivery of the relevant SIM Card(s) to the Customer and ending 12 months thereafter (“SIM Warranty Period”). Where SIM Card(s) supplied by InfiSIM to the Customer fail within the SIM Warranty Period the Customer shall notify and return (where practical) such SIM Card(s) to InfiSIM within that SIM Warranty Period. The Warranty shall not apply when such fault is connected with the Customer’s acts, omissions or misuse of the SIM Card(s), including where the Customer has not kept the SIM card(s) in good condition and not following any reasonable instructions from InfiSIM as to the storage of the SIM Card(s). InfiSIM shall, within ten (10) business days of receipt of a failed SIM Card which qualifies under the Warranty, repair or (at InfiSIM’s option) replace the failed SIM Card by sending a new SIM Card to the Customer’s address under the Agreement. In the event that a SIM Card becomes faulty after the SIM Warranty Period and the Customer requests that InfiSIM repair or replace such faulty SIM Card then InfiSIM shall charge the appropriate replacement charges for repair or replacement. The return of faulty SIM Card(s) outside of the SIM Warranty Period or due to misuse by the Customer shall be at the Customer’s sole expense. To the maximum extent permitted by law, these are the Customer’s exclusive remedies for any failure to meet the Warranty.
9.3 Save as expressly provided in the Agreement, all other warranties, terms and conditions (whether implied by common law, statute, and custom or otherwise) are hereby excluded to the fullest extent as permitted by law.
9.4 Subject to Clause 17, InfiSIM shall not be liable for services, systems and equipment provided by the Customer or any Third Party which constitute:
(a) a component of the Services; or
(b) a component of other systems, equipment or services provided by the Customer and/or any Third Party to the Customer and/or the Customer’s customers and/or End Users.
9.5 The Customer acknowledges and accepts that it is technically impracticable for InfiSIM to provide fault-free Services and InfiSIM does not guarantee that the Services will be free of faults or interruptions, that the Services will be free of errors, omissions or other issues or that the Services will be timely or secure. The Customer acknowledges and agrees that matters may affect the Services that InfiSIM cannot reasonably control, including (without limitation) lack of network capacity, physical obstructions, atmospheric conditions and delays caused by InfiSIM’s suppliers or manufacturers.
9.6 The Customer warrants and undertakes to InfiSIM that all information provided by or on its behalf in connection with provision of the Services is true, accurate and complete and can be relied upon in full by InfiSIM and its agents, contractors and employees. The Parties agree that subject to the provisions of Clause 17, InfiSIM shall have no liability under or in connection with the Agreement to the extent that such liability arises, directly or indirectly, from:
(a) the supply of untrue, inaccurate or incomplete information provided by the Customer or on its behalf and/or any breach by the Customer of the warranty and undertaking in this Clause;
(b) matters beyond InfiSIM’s reasonable control, including lack of network capacity, physical obstructions, atmospheric conditions and delays caused by InfiSIM’s suppliers;
(c) any defect, fault, breakdown, compatibility issues or other failure of any equipment, systems, services and/or software provided by the Customer or its agents, subcontractors or other Third Parties (including, any Systems Integrator or other Third Party Supplier) to the Customer’s customers or End Users and used with the Services; or
(d) any acts or omissions of the Customer or its agents, subcontractors or other Third Parties in respect of the Services (including, any Systems Integrator or other Third Party Supplier).
9.7 The Customer acknowledges that in relation to international roaming Charges:
(a) the Network Providers vary their roaming fees dependent on:
(i) the location of the SIM Card(s) concerned; and
(ii) whether roaming is on preferred or non-preferred networks;
(b) it is the Customer’s responsibility to ensure that the Customer, its customers and End Users each familiarise themselves with the billing increments and the data usage Charges for roaming SIM Cards. The Network Providers structure roaming prices as follows:
(i) Vodafone UK SIM Card(s) – Vodafone SIM Card(s) are billed in 200KB increments on public or internet APNs. If a private network is selected (as per InfiSIM’s) then billing increments are billed in 1KB increments on Vodafone and partner networks and 10KB increments on non-Vodafone or non-partner networks;
(ii) Vodafone Global SIM Card(s) – full details of the billing increments are available from InfiSIM on request;
(iii) O2 SIM Card(s) – O2 SIM Card(s) are billed in 10KB increments on non-preferred networks and 1KB on preferred networks. When roaming, there is a minimum charge for data usage of 200kb per day (24 hours ending midnight UK GMT), per APN and per foreign network operator;
(iv) EE & O2 Ireland SIM Card(s) – EE & O2 Ireland SIM Card(s) are billed in increments of 1KB;
(c) the applicable charges shall be the prevailing Network Providers rate plus twenty per cent (20%).
9.8 InfiSIM and each Network Provider reserves the right to update a SIM Card over the air (such updates may be required for functionality, or for intellectual property issues, or national regulations). InfiSIM shall provide the Customer with reasonable advance notice of any such planned update (except in cases where regulations or urgency would not allow it). Under some national laws, updates require the consent of the owner of the equipment containing/user of a SIM Card. The Customer hereby expressly consents to any updates and the Customer shall make and procure to make such consent binding on any owner of such equipment/SIM Card user through a relevant licensing agreement or by other equivalent means. Where such consent is not obtained, InfiSIM and/or any relevant Network Provider shall have the right to suspend transmission to and from the relevant SIM Card(s).
9.9 Both InfiSIM and each relevant Network Provider retain the right at all times to suspend or deactivate any non-upgraded SIM Card(s), and neither InfiSIM nor any Network Provider accepts any liability for any consequences of such suspension.
10.1 InfiSIM shall use its reasonable endeavours to meet any performance dates specified (if any) in the Customer Framework Agreement Form.
10.2 Time shall not be of the essence in relation to any obligation of InfiSIM under the Agreement.
11. The Customer’s rights to cancel
11.1 The Customer is entitled to cancel an order for SIM Card(s) pursuant to a Customer Framework Agreement Form at any time prior to the point in time when the Services are first supplied.
11.2 InfiSIM reserves the right to increase the Charges at any time. If InfiSIM increases the Charges in excess of the current RPI, the Customer has the right to end the Agreement by completing and returning to InfiSIM notice Cancellation Request Form. In such circumstances, the Agreement will end thirty (30) days after InfiSIM receives the Customer’s signed and completed Cancellation Request Form. During the notice period the previously applied Charges will apply.
12. Further Assurances of the Customer
12.1 The Customer shall, throughout the Term:
(a) make available appropriate personnel to liaise with InfiSIM to enable InfiSIM to perform the Services in accordance with the terms of the Agreement;
(b) promptly inform InfiSIM of any defects in InfiSIM’s performance of the Services after such defects come to the attention of the Customer;
(c) comply and ensure that its customers and End Users comply with any conditions notified by Network Providers and/or InfiSIM regarding the use of the SIM Card(s);
(d) tell InfiSIM immediately if the Customer’s name, address, bank account or credit card details change; and
(e) tell InfiSIM immediately if any of the Customer’s SIM Card(s) are lost or stolen by calling the Customer Support and thereafter write or fax to confirm the details.
13. Payment and Charges
13.1 In consideration of the provision of the Services (including any Trial Service), the Customer shall pay to InfiSIM the Charges. Where applicable, the Charges shall include sums incurred as a result of going over the inclusive allowance for any Tariff (or any charges above the normal line rental as set out in the tariff addendum form).
The Customer shall pay any and all charges relating to any artificially inflated traffic (including, but not limited to, the use of unauthorised gateways or devices that result in disproportionately high levels of voice, SMS or data consumption) regardless of the existence of an “unlimited” voice, SMS or data allowance
When Charges can be increased or passed on:
13.2.1 InfiSIM reserves its rights to increase the Charges without notice, including where InfiSIM is notified of any increase:
(a) in the cost of the SIM Cards; or
(b) in any other costs and expenses of InfiSIM occurring prior to the Commencement Date.
13.2.2 InfiSIM reserves the right to pass on to the Customer on a cost-plus basis (adding 15%) any charges levied by the Network Provider to which it is exposed as a result of the Customer and/or its End-Users’ actions.
13.3 The Customer shall complete the direct debit payment form which is attached to the Customer Framework Agreement Form as a condition of InfiSIM supplying the Services and thereafter the Customer shall pay the Charges for the Tariff the Customer has chosen by direct debit. If the Customer cancels the direct debit InfiSIM shall impose an administration charge of £25.00 (plus VAT) which is payable within ten (10) business days of the cancellation of the direct debit facility. InfiSIM reserves the right to impose a further surcharge of £5.00 (plus VAT) per calendar month in anticipation of InfiSIM’s additional costs in processing non-direct debit payments. All non-direct debit payments shall be paid within fourteen (14) days of the date of InfiSIM’s invoice. In addition to any other rights and remedies available to InfiSIM, InfiSIM reserve the right to impose a surcharge of £15.00 (plus VAT) for the late payment of any invoice or if a direct debit is returned unpaid.
13.4 The Customer shall notify InfiSIM of any billing queries within seven (7) days of the date of the invoice from which the query arises and shall not withhold payment of any Charges set out in the queried invoice, or any invoice, by reason of such billing query until it has been resolved by InfiSIM, which will avoid any interruption to the service being provided. InfiSIM is unable to investigate any potential billing queries after twenty one (21) days from date of invoice.
13.5 Any advance payments made by the Customer shall be held by InfiSIM as a deposit and InfiSIM shall be entitled to set off such advance payments against any future invoices as they arise.
Failure to pay:
13.6 If the Customer fails to pay in full when due any sum payable to InfiSIM under this Agreement, the liability of the Customer shall be increased to include interest on that sum from the date when such payment was due until the date of actual payment at a rate of two per cent (2%) above the base rate from time to time of RBS plc. Such interest shall accrue from day to day and shall be compounded monthly.
14. Faulty SIM Cards – Customer Support
14.1 InfiSIM shall provide first line support to the Customer through the Customer Support facility.
14.2 The Customer Support shall be staffed by appropriately qualified personnel between the hours of 08.30 and 17:30 GMT on business days.
14.3 Upon receipt of a Customer report that a SIM Card has developed a Fault, the Customer Support shall, so far as they are able, take such steps to resolve the relevant Fault, including, remotely resetting the SIM Card.
14.4 Should the Customer Support action undertaken in accordance with Clause 14.3 fail to remedy the Fault, and the Fault occurs during the SIM Warranty Period set out in Clause 9.2 InfiSIM shall replace the faulty SIM Card free of charge.
14.5 Should the Customer Support action undertaken in accordance with Clause 14.3 fail to remedy the Fault, and the Fault occurs after the expiry of the SIM Warranty Period set out in Clause 9.1(a) InfiSIM reserves the right to charge a replacement fee in relation to the provision of the replacement SIM Card.
15. Reporting and Nova Platform
15.1 If the Customer has a specific query relating to the data usage of a SIM Card provided and InfiSIM deems such query to be reasonable, the Customer is entitled to request from InfiSIM a detailed report showing the itemised data usage that SIM Card; InfiSIM reserves the right to charge a fee of £8.00 (plus VAT) for the provision of any such report. In the event of any dispute regarding data usage of a SIM Card InfiSIM and (if applicable) the relevant Network Provider’s usage data shall be binding on the Customer and InfiSIM save in the event of a manifest error or fraud.
15.2 In addition to the Services, InfiSIM grants to the Customer a non-exclusive, non-transferable, revocable licence to use the Nova Platform. The Customer acknowledges that all information on the Nova Platform is for guidance and information purposes only and cannot be relied on by the Customer for any invoicing or otherwise.
15.3 InfiSIM makes no representations or warranties as to the availability or accuracy of the Nova Platform or information contained therein. InfiSIM reserves the right to restrict or remove access by the Customer of the Nova Platform, or to change the look, feel, availability or content of the Nova Platform at any time.
If Applicable Law changes the VAT rate or any other applicable tax is increased, InfiSIM reserves the right to change the terms of the Agreement accordingly by giving the Customer written notice of the same.
17. Liability and remedies
What is InfiSIM does not exclude liability for:
17.1 Nothing in the Agreement shall be deemed to exclude or limit the liability of either Party for:
(a) death or personal injury arising from its negligence;
(b) any damage or liability incurred as a result of fraud or fraudulent misrepresentation; or
(c) anything else for which the Parties cannot at law limit or exclude its liability.
17.2 Nothing in the Agreement shall impose any personal liability on any officer, employee, agent or adviser of either Party without wilful misconduct.
What InfiSIM does exclude liability for:
17.3 Except as provided in sub-Clause 17.1, and in addition to the provisions of Clauses 9.4 to 9.6 (inclusive) InfiSIM shall not be liable for the following loss or damage however caused (whether in contract, tort, negligence, common law or otherwise and whether foreseeable or not and whether incurred directly or indirectly):
(a) economic loss including administrative and overhead costs;
(b) loss of profits;
(c) loss of business or contracts;
(d) loss of revenues;
(e) loss of goodwill;
(f) loss of production;
(g) loss of opportunity;
(h) loss of anticipated savings;
(i) loss of data;
(j) special damages of any kind;
(k) consequential loss or damage;
(l) loss arising from any claim made against the Customer by any other person;
(m) loss or damage arising from the Customer’s failure to fulfil its responsibilities or any matter under its control.
InfiSIM’s maximum liability:
17.4 InfiSIM’s entire liability under or in connection with any individual claim or series of connected claims made under or in connection with the Agreement shall be limited to an amount equal to the greater of the sum of the fees paid by the Customer in the twelve (12) months immediately preceding the incident which gave rise to the claim; and £10,000 in aggregate.
17.5 The Customer shall indemnify and hold InfiSIM and each Network Provider harmless from and against all losses, damages, costs, expenses, claims, proceedings and liabilities (including reasonable legal costs) (“Relevant Losses”) incurred by InfiSIM, each Network Provider or any of either of their respective group companies arising out of or in connection with any claim by a third party in relation to the Services to the extent that such Relevant Losses have not been caused by any act, omission (negligent, reckless or otherwise) of InfiSIM, a Network Provider or any of either of their respective group companies.
17.6 If any part of this Clause 17 is found to be unenforceable by any court or competent authority or would be found to be unenforceable if it were interpreted or construed in a particular way, then, it is the Parties express intention that the relevant wording should be interpreted or construed so as to avoid such a finding and that, in the event of such a finding, the remainder of the provision in question shall be interpreted or construed to give it full effect.
17.7 The terms of the Agreement shall apply to the exclusion of all other agreements or representations including any implied by law (so far as the Parties are able to exclude terms implied by law), and by any trade custom, practice or course of dealing.
18. Force Majeure
18.1 Subject to sub-Clause 18.2, neither Party shall be deemed to be in breach of the Agreement, or otherwise be liable to the other, by reason of any delay in performance or non-performance of any of its obligations under the Agreement to the extent that such delay or non-performance is caused by a Force Majeure Event. For the avoidance of doubt an inability to pay shall not constitute a Force Majeure Event.
18.2 The Party affected by any Force Majeure Event shall immediately give the other Party written notification of the nature and extent of the Force Majeure Event and the Parties shall enter into bona fide discussions with a view to alleviating its effects or to agreeing upon such alternative arrangements as may be fair and reasonable.
18.3 If InfiSIM is affected by the Force Majeure Event and the written notice in relation to the Force Majeure Event has not been withdrawn within one hundred and eighty (180) days, the Customer shall be at liberty to terminate the Agreement with immediate effect by serving a written notice on InfiSIM. The service of such notice shall be without prejudice to any rights or obligations which have accrued prior to such termination.
19. Intellectual Property Rights
19.1 All property and Intellectual Property Rights in the Services including without limitation all right, title and interest in and to all documents, data, specifications or other items relating to the Services, shall vest in and shall remain the exclusive property of InfiSIM, the relevant Network Provider(s) or its third party licensors, as applicable.
19.2 The Customer shall not, and shall use all reasonable endeavours to procure that its customers and each End User shall not, claim ownership of any Intellectual Property Rights in relation to or created pursuant to the SIM Cards or the Services and shall not take any action which might infringe any Intellectual Property Rights or other form of protection for any invention, discovery, improvement, design, mark or logo in relation to the SIM Cards or the Services and the Customer shall indemnify InfiSIM and keep it indemnified from and against all costs claims liabilities proceedings damages and expenses arising directly or indirectly as a result of any breach of the foregoing obligation by the Customer, its customers and/or End Users.
19.3 Any data, documents, Intellectual Property Rights or other information belonging to InfiSIM or a Network Provider which is supplied or otherwise furnished to the Customer in connection with the performance of the Agreement or otherwise shall remain the sole property of InfiSIM or the relevant Network Operator to whom they belong (as the case may be).
19.4 The Customer acknowledges that it shall have no express or implied right to use, modify, adapt or otherwise exploit InfiSIM’s, the Network Providers or any other Third Parties’ Intellectual Property Rights, except for the right to use such Intellectual Property Rights for the exclusive purpose of using the Services under the Agreement.
19.5 The Customer shall indemnify and hold InfiSIM harmless against any claims that the use of the Services in combination with services, software or equipment not supplied by InfiSIM infringes any other third party’s Intellectual Property Rights.
19.6 The Customer shall notify InfiSIM immediately of any infringement or apparent or threatened infringement of or any actions, claims or demands in relation to any Intellectual Property Rights or other form of protection for any invention, discovery, improvement, design, mark or logo in relation to the SIM Cards and/or the Services and the Customer shall provide (and shall use all reasonable endeavours to procure that the Customer’s customers and End Users shall provide) InfiSIM with all assistance which InfiSIM may reasonably require in connection therewith including but not limited to the prosecution of any actions which InfiSIM may deem necessary for the protection of any rights in relation to the SIM Cards and/or the Services and if so requested by InfiSIM in relation to any claim or action brought against the Customer, the Customer shall authorise the conduct of the same and all negotiations for the settlement of the same by InfiSIM or the relevant Network Provider(s) if directed by InfiSIM in its sole and absolute discretion.
20. Data Protection and Processing
As a consequence of the existence of this Agreement InfiSIM may hold personal data relating to the Customer. This will not be used by InfiSIM, other than as may be necessary for the purpose of this Agreement, without the consent of the Customer.
20.1 The parties acknowledge that, for the purposes of General Data Protection Regulation (GDPR), InfiSIM is the Data Processor and the Customer is the Data Controller of any Personal Data.
20.2 Each party confirms that it holds, and during the term of this Contract will maintain, all registrations and notifications required in terms of the Data Protection Laws which are appropriate to its performance of its obligations under this Agreement.
20.3 Each party confirms that, in the performance of this Contract, it will comply with the Data Protection Laws.
20.4 InfiSIM will:
20.4.1 In accordance with Article 28.3(a) of the GDPR, process Personal Data only on written instructions from the Customer or as set out in the Particulars and as necessary for the performance of a contract Article 6 (1) (b), unless required to do so by Data Protection Laws or any other applicable law to which InfiSIM is subject; in such a case, InfiSIM shall inform the Customer of that legal requirement before Processing, unless that law prohibits InfiSIM to so inform the Customer;
20.4.2 ensure that persons authorised to Process the Personal Data have committed themselves to confidentiality or are under an appropriate statutory obligation of confidentiality, as per article 28.3 of GDPR;
20.4.3 take all measures required pursuant to Article 32 of the GDPR in respect of security of Processing;
20.4.4 ensure that InfiSIM gain written consent from the Customer before using any subcontractor as a sub-processor, and that any sub-processor InfiSIM use in respect of this Contract complies with the provisions of this Clause 8 as if it was a party to this Contract;
20.4.5 taking into account the nature of the Processing, assist the Customer by appropriate technical and organisational measures, insofar as this is possible, for the fulfilment of the Customer’s obligation to respond to requests for exercising the Data Subject’s rights laid down in Data Protection Laws, to the extent that such requests relate to this Contract and InfiSIM’s obligations under it;
20.4.6 assist the Customer in ensuring compliance with the Customer’s obligations pursuant to Articles 32 to 36 of the GDPR taking into account the nature of processing and the information available to InfiSIM;
20.4.7 at the Customer’s option, delete or return all the Personal Data to the Customer after termination of this Contract or otherwise on the Customer’s request, and delete existing copies unless applicable law requires InfiSIM’s ongoing storage of the Personal Data;
20.4.8 make available to the Customer all information necessary to demonstrate InfiSIM’s compliance with this Clause 8.4, and allow for and contribute to audits, including inspections, conducted by the Customer or another auditor mandated by the Customer (any such audit must be carried out in accordance with InfiSIM’s Information Security Management System and Policy and any such auditor must be bound by an appropriate Non-Disclosure Agreement ); and
20.4.9 inform the Customer as soon as is reasonably practicable if, in InfiSIM’s opinion, an instruction from the Customer infringes, or, if complied with, might cause the infringement of, Data Protection Laws.
20.5 Each party will notify the other party as soon as is reasonably practicable if it becomes aware of a Personal Data Breach relating to either party’s obligations under this Contract.
20.6 The Customer shall undertake appropriate data protection impact assessments to ensure that Processing complies with Data Protection Laws. InfiSIM will provide the Customer with reasonable assistance, where necessary and upon the Customer’s request, in carrying out any data protection impact assessment and undertaking any necessary prior consultation of the Supervisory Authority.
20.7 It is the Customer’s responsibility to ensure that Personal Data is dealt with in a way that is compliant with Article 1(1) of the GDPR.
20.8 It is the Customer’s responsibility to ensure that:
20.8.1 it has obtained any and all consents of Data Subjects required in order to commence the Processing in accordance with the GDPR, and that it has recorded or documented these in accordance with the record keeping requirements of the GDPR; 20.8.2 where Personal Data falls within the Special Categories of Personal Data, Article 9(2) applies to that Personal Data before Processing takes place (any request by the Customer to process Special Categories of Personal Data, will be considered by InfiSIM on a case by case basis and InfiSIM have no obligation to accept such a request and process such data); and
20.8.3 where Article 9(2) of the GDPR does not apply to any Personal Data falling within the Special Categories of Personal Data, no such data will be sent to InfiSIM.
20.9 In the event that InfiSIM complies with the Customer’s instructions, InfiSIM shall not have any Liability to the Customer for any damage caused by Processing or for any consequences in the event that Processing otherwise infringes Data Protection Laws.
20.10 Each party agrees to indemnify, and keep indemnified and defend at its own expense, the other party, against all costs, claims, damages or expenses incurred by the other party or for which the other party may become liable, due to any failure by the first party or its employees or agents to comply with this Clause 8. This indemnity is subject to the exclusions and limitations of Liability set out in Clause 9.
20.11 In the event that the Customer requires a copy of the Customer Personal Data being held by InfiSIM, they shall make such a request of InfiSIM which must be in writing. Upon receipt of the request and subject to Customer’s payment of any applicable Fees, InfiSIM will as soon as is reasonably practicable ordinarily within 30 days of receipt of the request, provide a copy of the Customer Data in a CSV format only.
21. Fraud and Security
21.1 The Customer must ensure that usernames, passwords and/or PINs used by it and/or its personnel and/or users in connection with the Equipment and/or Services are kept confidential and are only used by authorised users. The Customer will inform InfiSIM immediately if the Customer knows or suspects (or ought reasonably to know or suspect) that a username, password or PIN has been disclosed to an unauthorised user or is being used in an unauthorised way. The Customer will not change or attempt to change a username without InfiSIM’s written consent.
21.2 InfiSIM reserves the right (at InfiSIM’s sole discretion): (i) to suspend usernames and password access to the Services if at any time InfiSIM thinks that there has been or is likely to be a breach of security; and (ii) to ask the Customer to (in which case, the Customer shall) change any or all of the passwords the Customer’s uses in connection with the Services.
21.3 The Customer will inform InfiSIM immediately of any subsequent changes to the information the Customer supplies to InfiSIM in connection with the Contract.
21.4 The Customer accepts and acknowledges that the Services are not guaranteed to be secure and InfiSIM does not guarantee the prevention or detection of any unauthorised attempts to access the Services.
21.5 The Customer acknowledges that InfiSIM has no control of a Customer’s equipment configuration, voice mail security or other feature services enabled.
21.6 InfiSIM shall not be responsible for Charges or other charges resulting from fraudulent and/or unauthorised use of the Equipment or Services by the Customer, its End Users or any third parties (who are not employees of InfiSIM) and the Customer agrees to pay all additional charges related to such fraudulent and/or unauthorised use. The Customer is therefore urged to verify with their equipment provider that all necessary steps to combat fraudulent and/or unauthorised use have been taken.
21.7 Any assistance given by InfiSIM in relation to fraudulent and/or authorised use by the Customer or third parties (or the prevention of such use) will be on an endeavours basis only and no liability can be accepted by InfiSIM for any loss sustained by the Customer via fraudulent and/or unauthorised means that are beyond InfiSIM’s reasonable control (save for any fraud and/or authorised use by an employee of InfiSIM acting in that capacity.
21.8The Customer accepts and acknowledges that the Services are not guaranteed to be secure and InfiSIM does not guarantee the prevention or detection of any unauthorised attempts to access the Services.
22.1 InfiSIM may suspend the Services, or any SIM Card, without liability if any one or more of the following occur:
(a) the telecommunications network and other infrastructure in place supporting the Services fails or if modification or maintenance work is being carried out in respect of the same, or such telecommunications network is unavailable for any reason;
(b) InfiSIM does not receive full payment of any Charges due pursuant to the Agreement in accordance with the payment terms set out in Clause 13 and the terms of the Agreement; in which case the Charges set out in Clause 24.5 shall apply;
(c) InfiSIM believes or has reasonable grounds to suspect that the Customer’s equipment or SIM Card(s) are being used fraudulently or illegally or if they have been lost or stolen (in which case the Charges remain payable until we are notified of such fraudulent or illegal use pursuant to Clause 12.1(e));
(d) the Customer is otherwise in material breach of the terms of the Agreement;
(e) InfiSIM reasonably anticipates that one of the events referred to in this Clause 22 is about to occur;
(f) at its discretion in relation to SIM Card(s) if it suspects that they have been tampered with, in any way which could render billing information inaccurate.
(g) if the Customer does, or allows to be done, anything which in the Network Provider’s or InfiSIM’s reasonable opinion may have the effect of jeopardising the operation of the Mobile Network Service;
(h) if the Customer permits the use of the Mobile Network Service or uses the Mobile Network Service for illegal purposes including the use of illegal or unauthorised Gateways (or the Network Provider or InfiSIM believes the same).
22.2 If the Services are suspended pursuant to Clause 22.1 for more than three (3) consecutive days, InfiSIM shall suspend the Charges for the period of unavailability.
When the Customer can terminate the Agreement:
23.1 The Customer may terminate the Agreement (in whole or in part):
(a) by completing and submitting to InfiSIM, the signed Cancellation Request Form. Provided that all termination fees payable in accordance with Clause 24 have been received by InfiSIM, such termination shall be effective thirty (30) days after the confirmed receipt by InfiSIM of the Cancellation Request Form; or
(b) if InfiSIM commits a material breach of the Agreement which is capable of remedy and fails to remedy that breach within thirty (30) days of receipt of written notice of the breach.
When InfiSIM can terminate the Agreement:
23.2 Without prejudice to any other rights or remedies which InfiSIM may have, InfiSIM may by notice to the Customer immediately terminate the Agreement (in whole or in part) if:
(a) the Customer commits an irremediable material breach of the Agreement which shall include, but not be limited to, if the Customer does, or allows to be done, anything which in the Network Provider’s or the InfiSIM’s reasonable opinion may have the effect of jeopardising the operation of the Service and if the Customer permits the use of the Service or uses the Service for illegal purposes including the use of illegal or unauthorised Gateways (or the Network Provider or InfiSIM reasonably believes the same) ;
(b) the Customer breaches any of its obligations, warranties and/or representations set out in this Agreement;
(c) the Customer commits a material breach of the Agreement capable of remedy and fails to remedy that breach within ten (10) business days of receipt of written notice of the breach from InfiSIM;
(d) the relevant Network Provider(s) upon which the Services are dependent suspends or ceases to make the telecommunications network and infrastructure available;
(e) the Customer repeatedly or continuously breaches any of its obligations under the Agreement and such breach or breaches continue to occur within fourteen (14) days of receipt of a written notice setting out such breach or breaches;
(f) an order is made or a resolution is passed or any other formal step is taken with a view to commencing winding-up or dissolution of the Customer, or circumstances arise which entitle a court of competent jurisdiction to make a winding-up order of the Customer (except for the purposes of amalgamation or reconstruction, the terms of which have been previously notified to and approved by InfiSIM);
(g) an order is made for the appointment of an administrator to manage the affairs, business and property of the Customer, or documents are filed with a court of competent jurisdiction for the appointment of an administrator of the Customer, or notice of intention to appoint an administrator is given to the Customer or its directors;
(h) a receiver is appointed over any of the Customer’s assets or an undertaking or circumstances arise which entitle a court of competent jurisdiction or a creditor to appoint a receiver or manager over the Customer, or if any other person takes possession of or sells the Customer’s assets;
(i) the Customer makes any arrangement or composition with its creditors, or makes an application to a court of competent jurisdiction for the protection of its creditors in any way;
(j) the Customer is unable to pay its debts within the meaning of section 123 of the Insolvency Act, 1986;
(k) any distress, execution, sequestration or other process is levied or enforced or sued out or upon or against the whole or any material part of the assets of the Customer;
(l) the Customer ceases, or threatens to cease, to trade;
(m) the provision or continuation of the Services would be in breach of an Applicable Law or Code of Conduct; or
(n) the provision of any Services requested by the Customer would require material modification to the Systems; or
(o) the Customer takes or suffers any similar or analogous action to those referred to in Clauses 22.2(f) to (n) (inclusive) in any jurisdiction in consequence of any debt.
23.3 Without prejudice to any other rights or remedies which InfiSIM may have, InfiSIM may, by thirty (30) calendar days’ written notice to the Customer terminate the Agreement (in whole or in part).
23.4 The right to terminate the Agreement in this Clause 23 shall be without prejudice to any other right or remedy of either Party in respect of the breach concerned (if any) or any other breach.
23.5 For the purposes of Clause 23.2(c), a breach shall be considered capable of remedy if the Party in breach can comply with the provision in question in all respects other than as to time of performance provided that time of performance is not of the essence.
23.6 Termination, suspension, disconnection or Barring under this Clause 23 shall be without prejudice to InfiSIM’s rights accrued up to and beyond the date of termination, suspension, disconnection or barring.
23.7 After disconnection, suspension or Barring of the Equipment from the System and/or consequent upon the termination of this Contract, the Customer shall pay on demand all Charges outstanding at the time of disconnection, suspension or Barring including any reasonable disconnection or Barring fee that InfiSIM may wish to charge in its sole discretion. Should InfiSIM elect to disconnect and/or reconnect the Equipment from or to the System, then InfiSIM having regard to the circumstances at the time of disconnection or reconnection may elect to charge a fee of up to £30.00 per SIM card for such disconnection or reconnection.
23.8 Should termination take place part way through a month, no credit will be given for the post termination part of the month’s access Charge(s).
23.9 The Customer will remain liable for all Charges incurred prior to termination regardless of when they are invoiced.
24. Consequences of Termination and Costs of Changes
24.1 All rights and obligations of the Parties shall cease to have effect immediately upon termination or expiry of the Agreement, save that such termination or expiry shall not prejudice or affect:
(a) any right of action or remedy which shall have accrued or shall thereafter accrue to either Party; or
(b) the continued existence and validity of the rights and obligations of the Parties under those Clauses which by implication or express agreement are to survive termination or expiry of the Agreement.
24.2 On termination (in whole or in part) or expiry of the Agreement for any reason, the Customer shall:
(a) immediately cease to make use of any of the relevant SIM Cards and the Services; and
(b) as soon as reasonably practicable deliver to InfiSIM or, at InfiSIM’s option, destroy all or any SIM Cards.
24.3 Upon the termination of the Agreement (in whole or in part) the following termination fees are payable:
(a) If the Customer ends all or part of the Agreement pursuant to Clause 11 or 24.1(b), only the Charges due up to and including the date of the termination of the Agreement are payable;
(b) If all or part of the Agreement terminates for any other reason and the Minimum Contract Term has not expired (and will not expire during the notice period), the following Charges are payable:
(i) the amount of unpaid line rental and other fixed Charges remaining in respect of each of the relevant SIM Cards terminated for the period from the date of expiry of the notice period up to and including the last day of the Minimum Contract Term; and
(ii) all outstanding Charges due up to and including the date of the termination of the Agreement; and
(iii) an administration fee for each SIM Card to be terminated, in each case such administration fee levied in respect of InfiSIM’s administrative and other costs of disconnecting the SIM Card from the Services and the relevant telecommunications network.
(c) If all or part of the Agreement terminates for any other reason and the Minimum Contract Term of the Agreement has expired (or will expire during the notice period) the following Charges are payable:
(i) the amount of the Charges up to and including the date upon which the relevant notice period expires;
(ii) all outstanding Charges due up to and including the date of the termination of the Agreement; and
(iii) an administration fee for each SIM Card to be terminated, in each case such administration fee levied in respect of InfiSIM’s administrative and other costs of disconnecting the SIM Card from the Services and the relevant telecommunications network.
24.4 If the Customer elects to port or migrate their mobile phone number(s) pursuant to Clause 16.1 InfiSIM reserves the right to charge the Customer an administration fee per SIM Card in addition to any charges for termination charged by the relevant Network Provider that may be applicable and levied by that Network Provider against InfiSIM.
24.5 If the Services are suspended pursuant to Clause 22.1 and the Customer requests reconnection, InfiSIM reserves the right to charge an administration per SIM Card reconnected in addition to all arrears in Charges due in respect of the relevant SIM Card(s); the Charges payable pursuant to this Clause 24.5 must be paid, at InfiSIM’s discretion, as a pre-condition to such reconnection.
25.1 InfiSIM may subcontract the rights and obligations it has under the Agreement to a Third Party.
26.1 The Customer shall not, without the prior written consent of InfiSIM, assign, transfer, charge or deal in any other manner with all or any of its rights or obligations under the Agreement.
26.2 InfiSIM may at any time assign, transfer, charge, sub-contract or deal in any other manner with all or any of its rights or obligations under the Agreement.
27. Entire Agreement
27.1 The Agreement together with any documents referred to in the Agreement sets out the entire agreement and understanding between the Parties in respect of the subject matter of the Agreement and supersedes all prior oral or written agreements, arrangements or understanding between the Parties.
27.2 The Customer acknowledges that it has entered into the Agreement in reliance only upon the representations, warranties and promises specifically contained or incorporated in the Agreement and, save as expressly set out in the Agreement, the Customer shall have no liability in respect of any other representation, warranty or promise made prior to the date of the Agreement unless it was made fraudulently.
27.3 Any variation to this agreement must be confirmed in writing and agreed by both parties.
28. Releases and waivers
28.1 Either Party may, in whole or in part, release, compound, compromise, waive, or postpone, in its absolute discretion, any liability owed to it or right granted to it in the Agreement by the other Party without in any way prejudicing or affecting its rights in respect of that or any other liability or right not so released, compounded, compromised, waived or postponed.
28.2 A waiver of any right under the Agreement is only effective if it is in writing and it applies only to the Party to whom the waiver is addressed and the circumstances for which it is given.
28.3 No single or partial exercise, or failure or delay in exercising any right, power or remedy by any Party shall constitute a waiver by that Party of, or impair or preclude any further exercise of, that or any right, power or remedy arising under the Agreement or otherwise.
28.4 Notwithstanding the generality of Clauses 28.1 to 28.3, the Customer acknowledges that any waiver or failure to collect any fees due under this Agreement is a gesture of goodwill by InfiSIM and shall not prevent InfiSIM from relying on such rights in the future.
29. Exclusion of Third Party Rights
29.1 Each Network Provider is a third party for the purposes of the Contract (Rights of Third Parties) Act 1999 and where stated, each and every obligation of the Customer under this Agreement is owed to each relevant Network Provider who may enforce its rights in the Agreement as if it were a party to it.
29.2 Subject always to Clause 29.1, the Parties agree that the provisions of the Agreement are personal to them and their permitted successors and assigns and are not intended to confer any rights of enforcement on any third party and save as expressly provided for in the Agreement the Contracts (Rights of Third Parties) Act 1999 shall not apply to the Agreement, or to any of its provisions.
29.3 Save for where it is stated to the contrary, if any person who is not a Party is stated to have the right to enforce any of its terms under the Contracts (Rights of Third Parties) Act 1999, the Parties may rescind or vary the Agreement (and any documents entered into pursuant to or in connection with it) without the consent of that person.
30.1 Any notice to a Party under or pursuant to the Agreement shall be in writing signed by or on behalf of the Party giving it and shall, unless delivered to a Party personally, be left at, or sent by prepaid first class post, prepaid recorded delivery to the address of the Party as set out on the Customer Framework Agreement Form or as otherwise notified in writing from time to time.
30.2 In proving service it will be sufficient to prove:
(a) in the case of personal service, that it was handed to the Party or delivered to or left in an appropriate place for receipt of letters at its address;
(b) in the case of a letter sent by post, that the letter was properly addressed, stamped and posted;
30.3 A Party shall not attempt to prevent or delay the service on it of a notice connected with the Agreement.
Each of the Parties shall at all times take all reasonable steps to minimise and mitigate any loss which it may suffer for which the relevant Party is entitled to bring a claim against the other Party under the Agreement.
32. Further Assurance
Each Party shall execute such documents and take such steps as the other Party may reasonably require to fulfil the provisions of and to give to each Party the full benefit of the Agreement.
Where under the Agreement any Party agrees to pay to the other Party any sum or to furnish to that other Party consideration which (in either case) is consideration for a taxable supply that sum or consideration shall be exclusive of Value Added Tax payable on it and the recipient of the supply shall pay an amount equal to such Value Added Tax in addition to any sum or consideration on receipt of a valid Value Added Tax invoice from the relevant Party.
34.1 The Customer acknowledges and agrees that InfiSIM will not tolerate bribery in any form in connection with the conduct of its business.
34.2 The Customer shall:
(a) comply with all applicable laws, statutes, regulations, codes and guidance relating to anti-bribery and anti-corruption (“Anti-bribery Laws”), including without limitation the Bribery Act 2010 (including any subordinate or amending legislation);
(b) not engage in any activity, practice or conduct which would constitute an offence under the Bribery Act 2010 if such activity, practice or conduct had been carried out in the United Kingdom;
(c) not do, or omit to do, any act that will cause InfiSIM to be in breach of the Anti-bribery Laws;
(d) promptly report to InfiSIM any request or demand for any undue financial or other advantage of any kind received by the Customer in connection with the performance of the Agreement;
(e) maintain throughout the term of the Agreement its own anti-bribery policies and procedures including without limitation adequate procedures under the Bribery Act 2010 to ensure compliance with the Anti-Bribery Laws, and shall provide a copy of such policies and procedures to InfiSIM on request, and shall enforce such policies and procedures where appropriate. For the purpose of this Clause 34, the meaning of adequate procedures shall be determined in accordance with section 7(2) and any guidance issued under section 9, Bribery Act 2010; and
(f) within five (5) business days of receipt of a request from InfiSIM, certify to the InfiSIM in writing its compliance with this Clause 34.
34.3 In the event that the Customer sub-contracts the provision of any element of the Agreement to any person, or receives any services in connection with its performance of the Agreement from any person, (each such person being an “Associated Person”), it shall impose upon such Associated Person anti-bribery obligations that are no less onerous than those imposed upon the Customer in this Clause 34. The Customer shall be liable to InfiSIM for the acts and omissions of each Associated Person in relation to compliance with such anti-bribery obligations (or, where the Customer has failed to impose such obligations, the obligations that the Associated Person would be under if the Customer had complied with the obligation under this Clause) as if such acts or omissions were those of the Customer itself.
34.4 The Customer warrants and represents that neither the Customer nor any of its officers, employees or any Associated Person has been convicted of any offence involving bribery, corruption, fraud or dishonesty or, to the best of its knowledge, has been or is the subject of any investigation, inquiry or enforcement proceedings by any governmental, administrative or regulatory body regarding any offence or alleged offence under the Anti-Bribery Laws.
34.5 Breach of this Clause 34 shall be deemed a material breach of the Agreement.
34.6 The Customer shall indemnify InfiSIM against any losses, liabilities, damages, costs and expenses incurred by, or awarded against, InfiSIM as a result of any breach of this Clause 34 by the Customer (including any liability that the Customer has to InfiSIM by virtue of the acts or omissions of any Associated Person under Clause 34.3).
34.7 The Customer shall keep and maintain throughout the term of the Agreement detailed, accurate and up to date records showing all payments made and received by the Customer in connection with the Agreement. The Customer shall ensure that such records and books of accounts are sufficient to enable InfiSIM to verify the Customer’s compliance with its obligations under this Clause 34.
34.8 The Customer shall permit InfiSIM and its third party representatives, on reasonable notice during normal business hours, but without notice in the event of any reasonably suspected breach of this Clause 34, to access and take copies of the Customer’s records, books of account and any other information held by or on behalf of the Customer and to meet with the Customer’s personnel in order to audit the Customer’s compliance with its obligations under this Clause 34. Such audit rights shall continue for six (6) years after termination or expiry of the Agreement. The Customer shall give all necessary assistance to the conduct of any such audits.
35. Dispute Resolution
35.1 If there is a dispute under this Agreement, the Customer agrees to the following dispute resolution process below:
- whichever party is affected will provide the other party with written notice of the complaint that sets out in reasonable detail the full facts and any other supporting documentation;
- both parties will use reasonable endeavours to settle the dispute within 14 days of the receiving the complaint;
- if the dispute is not resolved after 14 days (or for any additional period agreed in writing by the parties) the dispute can be escalated to a senior executive of either party who shall be nominated at the time;
- if the dispute is not settled 14 days after any such escalation, the parties will consider mediation.
36. Governing Law and Jurisdiction
36.1 The Agreement shall be governed by and construed in accordance with the laws of England and Wales.
36.2 Each of the Parties irrevocably submits for all purposes in connection with the Agreement to the exclusive jurisdiction of the courts of England and Wales.
36.3 Neither party shall issue legal proceedings in relation to any dispute arising from these Terms and Conditions until the earlier of the conclusion of the escalation procedure referred to under Clause 35 or 3 months after the date the dispute was first referred to the escalation procedure. This shall not prevent either party from making an application to any court of competent jurisdiction to obtain any interim relief (including an injunction) at law or in equity in relation to the dispute.
36.4 The Customer shall be required to bring any legal proceedings within 12 months of the date of the dispute, otherwise it shall be time-barred from bringing such proceedings.