General Terms and Conditions

3/26/2013

General Terms & Conditions

1. Multiple Country SIM service

1.1.     The terms and conditions of these General Terms and Conditions apply to the Company and all its End Users.

1.2.     The Company acknowledges and agrees that it has provided Truphone the following information, as applicable, on appropriate letter headed paper:

i) for limited and public companies: the company’s registered full name and number, registered address and  the Tax Registration Numbers;

ii) for partnerships: full partnership name and number, registered address and the Tax Registration Numbers;

iii) for charities: full charity name and address, charity number and the Tax Registration Numbers if applicable;

iv) for all other businesses: the entity name and confirmation of legal entity, registered address and Tax Registration Numbers.

1.3.      These general terms and conditions for the supply of the Truphone products and services to be provided by Truphone, Inc. to the Company and, by and through the Company, to its End Users with Truphone for the Service (defined below), for use by the Company and such End Users. The Company’s and its End Users’ use of the Service is subject to this Agreement including any other terms and conditions associated with any ancillary services offered by Truphone as notified to the Company in writing and which are incorporated into this Agreement.  A copy of this Agreement should be retained for future reference and any changes or updates to this Agreement will be notified to the Company in writing. The general terms of usage and updates to the roll out of the Service globally, incorporated herein by reference, will be posted on www.truphone.com (the “Website”).   

1.4.      The Company and its End Users shall access and use the Service in accordance with this Agreement.

2. Contract Period

The Company’s and its End Users’ connection to and use of the Truphone Service are subject to the Company keeping the payment status of its account current at all times in accordance with this Agreement. By accepting the terms of this Agreement, the Company agrees to make the payments due under this Agreement as they relate to the Service requested and used by the Company and its End Users for the Contract Period. Except for the Company’s termination of this Agreement under Sections 9.4(a) or 9.4(e) below, early termination of this Agreement by the Company will not relieve the Company of its payment obligations and liability for those monthly charges for the Service that are applicable for the duration of the Contract Period.

3. Service

3.1.     Truphone shall provide the Company with the SIM, Devices, and related national and international telecommunications services including voice, text and where available 3G data services based on the capabilities of a multi-IMSI SIM card (collectively, the “Service”) subject to the terms of this Agreement.

availability

3.2.     The Company acknowledges that (i) the Service is based on mobile telephony; (ii) mobile telephony is a form of wireless communication and operates on the basis of transmission of radio and signal frequencies and (iii) mobile telephony can be interfered with by numerous external sources or by obstacles inherent in buildings, vegetation or terrain and, as a result, Truphone does not at any time represent, warrant, or otherwise guarantee a perfect, continuous, or error-free Service, whether in terms of quality, reliability, or availability of the Service.

3.3.     The Service is and at all times shall be provided on an "as is" and "as available" basis. Truphone agrees to take all reasonable steps to make the Service available to the Company at all times, contingent upon Truphone’s and/or Truphone’s service provider's ability to maintain necessary licenses or permissions, or Truphone’s and/or Truphone’s service provider's network capacity and connection availability. Without limiting the foregoing, the Company acknowledges and agrees that the network operator in the country within which the Company or its End Users, as the case may be, access and/or use the Service will be responsible, and Truphone shall have no responsibility, for any aspects of network coverage, quality, reliability, and availability.

3.4.     Truphone does not represent, warrant, or otherwise guarantee a fault- free Service and disclaims all representations, warranties, or guarantees as to network coverage, quality, reliability, or availability or any other aspect of the Service. In the event of a fault in the Service, upon becoming aware of the fault or upon receipt of notice from the Company of the existence of such a fault, Truphone shall use commercially reasonable efforts to promptly correct the fault to the extent reproducible or otherwise identifiable by Truphone.

3.5.     Truphone reserves the sole and exclusive right to choose Truphone’s network operators and technology partners as Truphone deems appropriate and to provide access to the Service in any manner Truphone deems in the best interest of Truphone’s business requirements. In this regard the Company hereby consents to Truphone disclosing and using any of the Company’s personal data for the provision of the Service, subject to any applicable data protection or similar legislation or regulations. Any such use of the Company’s personal data will be subject to the terms of Truphone’s Privacy Policy and updated versions of which shall be notified to the Company in writing and can also be found on our Website.

important emergency and 9-1-1 information and emergency alerts

3.6.     If an End User is in an area where their Truphone SIM card is searching for a wireless signal or there is no wireless signal or wireless service, it is highly probable that a call to 911 will not go through.  The End User must not rely solely on the Truphone SIM card in an emergency situation.  In an emergency, the End User must locate the nearest landline phone and call for help.  The Company acknowledges and agrees that in no event shall Truphone be liable to the Company, any End User, or any other party in connection with access to or use of the Service in any emergency situation, including without limitation as described above.

3.7.     If you do make a 9-1-1 call from your Device using a Truphone SIM Card, always state the nature of your emergency and provide both your location and phone number, as the operator may not automatically receive this information. In no event shall Truphone be responsible for or have any liability with respect to 9-1-1 calls, including without limitation any failures to connect or complete 9-1-1 calls or if inaccurate location information is provided.  The Company acknowledges and agrees that (i) 9-1-1 service may not be available or reliable and the Company’s ability to receive emergency services may be impeded; (ii) Truphone may use a variety of information and methods to determine the location of a 9-1-1 call, including Global Positioning Satellites, our wireless network, or the street address that the Company has provided to Truphone the Company’s primary use location and even with this information, an emergency operator may not be able to locate an End User or other individual in order to provide emergency services; (iii) other third party entities are involved in connecting a 9-1-1 call and Truphone does not determine the public safety agency to which any 9-1-1 call is routed; (iv) if the Company or any End User is porting a phone number to or from Truphone, Truphone may not be able to provide the Company or such End User with some or all of the Service, such as 9-1-1 location services, while the port is being implemented; and (v) if you dial 9-1-1 while outside the U.S., 9-1-1 services may not be available.  

local numbers

3.8.     The Company can add multiple available nominated additional country Truphone mobile numbers to the Company’s SIM account that Truphone offers as part of Truphone’s Service and to which the Company and Truphone have contractually agreed.

3.9.     The current list of countries where Truphone offers additional local mobile numbers and the process for adding additional country numbers can be found on the Website or the Company can call Customer Services for an up to date list and information on how to add an additional country number. Truphone reserves the right to amend this country list from time to time without notice to the Company.

3.10.    The use of any numbers assigned to  End Users’ SIM cards is subject to these terms and conditions and any breach of these terms and conditions may result in suspension or termination of the Company’s and/or End Users’ access to and use of one or more of such numbers. 

local tariffs for designated countries

3.11.    A unique feature of the Truphone Service is the ability to be charged local rates for calls in countries outside the Company’s chosen home country. Where the Company has subscribed to have access to local tariffs for the Company’s SIM for countries other than the Company’s chosen home country and, provided that the necessary fees for such access have been paid by the Company.  End Users will be able to make and receive calls on the Company’s SIM cards at local call rates in those subscribed-for countries.

3.12.    Where Truphone does not have an arrangement with a specific country for the purchasing of local rates and thereby cannot offer local rates on the Truphone SIM, then End Users may still use the Truphone SIM but this will be on a roaming basis. The Company may incur additional charges for this roaming ability including for the making and receiving of calls, texts and data access whilst roaming.

3.13.    It is solely the Company’s responsibility to check the Website for the billing status (i.e. whether local tariffs are applicable for subscribing and/or roaming) of the country within which the Company or its End Users intend to use the Service before the Company or such End Users travel to that country and incur any charges by using the Service in that country. Truphone will not be liable for any charges incurred by the Company or End Users based on any misunderstanding of the applicable and available tariffs in a particular country.

roaming

3.14.    As with any GSM mobile service, a core feature of the Service is the inclusion of roaming on foreign networks in order to provide the Service outside the Company’s chosen home country and any Truphone Local Anyway designated countries for which the Company has subscribed (“Roaming”). The Company acknowledges and agrees that (i) Roaming requires the Company and its End Users to use foreign networks over which Truphone has no control and, therefore, does provide any representations, warranties, or guarantees about any aspect of the Service, including without limitation its availability, reliability, or quality; (ii)  the Company and its End Users’ access to and use of the Service whilst Roaming may be subject to certain laws, rules, and regulations that apply; and (iii) Truphone does not and will not accept any liability for the Company’s or any End User’s failure to comply with any of those laws, rules, or regulations.

suspension

3.15.    From time to time Truphone may be required to upgrade, modify or maintain the Service, including without limitation the migration of the Company’s account from one billing platform to a new or upgraded billing platform. On such occasions the Service may be temporarily unavailable, however, Truphone will use commercially reasonable efforts (i) to keep such disruption to a minimum and (ii) notify the Company in advance when possible.

3.16.    Truphone reserves the right to suspend the Service, or the Service to any End User(s), as appropriate, without giving the Company notice where:

a) Truphone has reason to believe the Company or any End User is in breach of the Service conditions of usage (Section 5 below), any other material term of this Agreement, or any of Truphone’s policies, as notified to the Company;

b) pending the outcome of an investigation following receipt of a complaint made against the Company or an End User;

c) where there are any outstanding bills or Service charges which have not been paid when they are due for payment and Truphone has provided reasonable written notice for remedying the non-payment of the outstanding bills;

d) Truphone is notified that the SIM Card licensed to the Company and/or an End User by Truphone is lost or stolen;

e) Truphone is obliged to comply with an order, instruction or request of any government, regulatory, or emergency services organisation, or other competent administrative authority;

f) in order to prevent damage or degradation of the Service or Truphone’s or Truphone’s contracting party's network integrity which may be caused by the Company, an End User, or any other party acting by, through, or on behalf of the Company;

g) for operational reasons or in an emergency or for security reasons.

monitoring

3.17.    Truphone may at Truphone’s discretion bar or disconnect an End User’s SIM if Truphone has reasonable cause to suspect any form of fraudulent use including relating to a SIM card or mobile phone whilst accessing or using the Service.

3.18.    Truphone may monitor the Service and disclose information gained from such monitoring in order (i) to satisfy any law, rule, regulation or other governmental request, (ii) to operate and administer the Service, or (iii) to protect Truphone or Truphone’s other customers.

4.       Activation 

The Service shall commence following activation of the SIM card so that the Service is operationally available for use by the Company and its End Users (“Activation”). Activation can be done on the Website; or by dialling 808; or calling Customer Support on UK +44 20 3318 0733 or USA +1-646-358-3496 or AUS +61 289 994 206.

5.       The Company’s obligations

use

5.1.     The Company shall procure that its End Users use the Service lawfully and in compliance with this Agreement.  The Company is and shall remain responsible and liable for (i) all use of the Service by End Users, including without limitation call costs and charges incurred with respect to the Company’s account for using the Service (including such use, call costs and charges incurred by any third party using the Company’s account with or without the Company’s permission) and (ii) any and all acts or omissions of End Users which would constitute a breach of this Agreement by the Company. The Company’s and its End Users’ access to and use of the Service is subject to Truphone’s Acceptable Use Policy, Privacy Policy and Fair Usage Policy, all of which may be amended from time to time as provided herein, are incorporated herein by reference, and to which the Company and its End Users shall adhere. A copy of each of those policies is available on the Website and shall also be available on request. The Company shall ensure that all End Users are provided with a copy of the Acceptable Use Policy and are made aware of the Privacy Policy and Fair Usage Policy. If Truphone makes any changes to these policies, Truphone shall notify the Company in writing, and the Company promptly shall advise all End Users of any such changes. Any access to or use of the Service in contravention of any of these policies will entitle Truphone to immediately terminate the Service to the Company and/or End User(s) and to cancel the Company’s account. Where reasonably practicable and legally possible to do so, Truphone agrees to notify the Company of any breaches of those policies by the Company or its End User(s) and, in its sole discretion, may allow the Company to remedy such breach within seven (7) days prior to any suspension or termination of the Service.

5.2.     The Company shall be responsible for all use of the Service including but not limited to Devices and compliance with any regulations and applicable instructions issued either by Truphone or the third party supplier(s) of the Devices.  Each such supplier shall be an intended third-party beneficiary under this Agreement and shall have the right to enforce directly against the Company any and all terms and conditions hereof that relate to the Device. 

5.3.     The Company must comply, and shall cause its End Users to comply, with all reasonable directions of Truphone, including without limitation relating to any security procedures and standards with respect to the Service. Truphone may communicate security issues to the Company from time to time when abuse or misuse is observed or reported by others along with any and all general information related to Truphone’s provision of the Service by any means, including via the Website.

5.4.      In addition to the terms stated in the Acceptable Use Policy, the Company shall not, and shall cause all End Users not to, misuse the Service or Device, including but not limited  to:

(a) reselling or rebilling the Service;

(b) using the Service or Device to engage in unlawful activity, or in conduct that adversely affects Truphone’s customers, employees, business, or any other person(s), or that interferes with Truphone’s operations, network, reputation, or ability to provide quality service, including but not limited to the generation or dissemination of viruses, malware or “denial of service” attacks;

(c) using the Service as a substitute or backup for private lines or dedicated data connections;

(d) tampering with or modifying any Device;

(e) "spamming" or engaging in other abusive or unsolicited communications, or any other mass, automated voice or data communication for commercial or marketing purposes;

(f) reselling Devices for profit, or tampering with, reprogramming or altering Devices for the purpose of reselling the Device;

(g) using the Service in connection with server devices or host computer applications, including continuous web camera posts or broadcasts, automatic data feeds, automated machine-to-machine connections or peer-to-peer (P2P) file-sharing applications that are broadcast to multiple servers or recipients, “bots” or similar routines that could disrupt net user groups or email use by others or other applications that denigrate network capacity or functionality;

(h) accessing, or attempting to access without authority, the information, accounts or devices of others, or to penetrate, or attempt to penetrate, Truphone’s or another entity’s network or systems;

(i) running software or other devices that maintain continuously active Internet connections when a computer’s connection would otherwise be idle, or “keep alive” functions (e.g. using a Data Plan for Web broadcasting, operating servers, telemetry devices and/or supervisory control and data acquisition devices);  

(j) assisting or facilitating anyone else in any of the above activities; or

(k) unless expressly authorized by Truphone in writing in advance, install, deploy, or use any regeneration equipment or similar mechanism (for example, a repeater or signal booster) to originate, amplify, enhance, retransmit or regenerate a transmitted RF signal.

5.5.     The Company acknowledges and agrees that any violation of this Article 5 irreparably harms Truphone in a manner that cannot be fully or adequately redressed by money damages and for which Truphone shall be entitled to immediate injunctive relief in addition to all other remedies available.

SIM card

5.6.     The Company must inform Truphone immediately (at the applicable telephone number shown below) if any SIM Card provided to the Company or any End User under this Pilot Agreement is lost or stolen. The Company will remain fully liable for all call costs and charges incurred unless and until the Company does so. If any phone or SIM card is lost or stolen please call Truphone’s Customer Service immediately on UK +44 20 3318 0733 or USA +1 646-358-3496 or AUS +61 289 994 206 or e-mail Truphone at business.help@truphone.com.  The cost of replacing a lost or stolen SIM card is subject to the payment of an administration charge of $20. Truphone is not responsible for any service fees, call costs or other charges incurred due to a lost or stolen SIM card, and all such service fees, call costs and other applicable charges for a lost or stolen phone or SIM card shall be the Company’s sole responsibility.

device

5.7.     The Company is solely responsible for ensuring that its End Users’ Devices are compatible with the Service that the Company purchases from Truphone. This responsibility shall include, but is not limited to, ensuring that these Devices are 'unlocked' and are compatible with the network in the country where the Company or such End Users wish to use them.

The Company acknowledges and agrees that (i) the quality, reliability, and other aspects of the Service are also dependent on the quality of the Device model that the Company chooses to use and (ii) Truphone has no control or influence over the quality of such Device and shall have no liability with respect thereto. The choice of Device is the Company’s sole responsibility.

content

5.8.     The Company is solely responsible for any and all content, information and communications transmitted to or by an End User using the Service, and the Company acknowledges and agree that Truphone has no responsibility for any such content, including without limitation any deletion, corruption or failure to store any content received on or transmitted using the Service.

regulatory compliance

5.9.     Certain countries have additional regulatory requirements that need to be fulfilled prior to Truphone being permitted to provide certain elements of the Service to customers. These include the obtaining, verification and retention of End User personal data. If an End User intends to travel to a country where Truphone is required to satisfy these additional regulatory requirements, then it is an express condition of Truphone providing the Service that the Company co-operate and provide the required information and/or documentation prior to obtaining the right to access and use the Service.

5.10.    Truphone shall have no liability to the Company for any costs or charges incurred by the Company or End Users for failing to comply and satisfy any regulatory requirement of a country prior to accessing and/or using the Service in that country.

5.11.    A list of countries requiring additional regulatory compliance can be found on the Website.  Truphone shall have the right, but not the obligation, to update or otherwise modify such information at any time in its sole discretion, and does not make any representations or warranties about the accuracy, completeness, or any other aspect of such list or information and disclaims all liability therefor. 

6.       Charges and Payment

6.1.     The Company shall be invoiced on a monthly basis for the Service utilized by the Company and its End Users. The Company must pay the full amount of all invoices issued pursuant to the payment terms agreed on the front page of this Agreement.

6.2.     The recurring monthly fees shall be invoiced and payable in advance of each month and the monthly usage charges incurred during a corresponding monthly period will be invoiced and paid in arrears.

6.3.     In the event that any sums are overdue, Truphone reserves the right to charge interest from the date of invoice on overdue sums at a rate of the lesser of (i) 3 percent (3%) over the prevailing standard variable rate of Chase Manhattan Bank from time to time or (ii) the maximum rate allowed under applicable law, or to suspend the provision of the Service.

6.4.     The Company is not entitled by reason of any set-off, counter-claim, abatement, or other similar deduction to withhold payment of any amount due to Truphone under this Agreement. Any such deduction or withholding of any invoiced amount may result in suspension or termination of the Service.

6.5.     The rates and charges for the Service shall be exclusive of any value-added-taxes (“VAT”) and any other applicable taxes, unless indicated otherwise. All collection, remittance and payment of any taxes, charges, levies, assessments and other fees of any kind imposed by governmental or other authority in respect of the Service shall be the Company’s sole responsibility, and the appropriate amount shall be included on the applicable invoice to the Company.

6.6.     Truphone will use commercially reasonable efforts to invoice the Company for Service charges and fees incurred in any given month in the following month. However, Truphone reserves the right to invoice the Company for such charges and fees up to six months after such charges and fees are incurred, including without limitation due to delayed roaming or other charges being levied by third party operators.

disputed Invoices

6.7      Billing queries with respect to any invoice must be made in writing within (1) month of the date of receipt of the applicable invoice, after which time the invoice will be deemed to be accepted and the Company will be deemed to have irrevocably waived any remedies which the Company would otherwise have to query such invoices.  Such written query shall set out in detail the issue in dispute, the grounds for the dispute and supporting evidence. 

6.8      Billing queries with respect to any invoice must be made in writing within (1) month of the date of receipt of the applicable invoice, after which time the invoice will be deemed to be accepted and the Company will be deemed to have irrevocably waived any remedies which the Company would otherwise have to query such invoices.  Such written query shall set out in detail the issue in dispute, the grounds for the dispute and supporting evidence. 

6.9      If the Company challenges the accuracy of any invoice, or a dispute arises between the Company and Truphone as to the accuracy of a sum due under this Agreement then, at the written election of either party, the procedures set out in Sections 6.9 to 6.14 (inclusive) below shall be used to resolve such dispute.

6.10    If the invoiced amount in dispute represents less than five percent (5%) of the total amount of the invoice (excluding tax), the invoiced amount shall be payable in full pending the resolution of the dispute. If the amount in dispute represents five percent (5%) or more, the disputed amount may be withheld pending resolution of the dispute and any undisputed balance shall remain payable in full. 

6.11    On receipt of any written query in accordance with Section 6.7 hereof, Truphone shall provide the Company with:

 

i) a definitive re-calculation of the relevant sum due from you under the terms of this Agreement. The Company shall have fifteen (15) Business Days to review such sum and calculation and to state whether the Company agrees with such calculation or, if the Company does not so agree, to state the matters which the Company does not accept as being an accurate calculation of the sum due to or from the Company. If the Company fails to respond to Truphone’s notification of the re-calculation within fifteen (15) Business Days then Truphone’s re-calculation shall be deemed final and binding on the Company; and

 

ii) reasonable access to information and relevant extracts of records or other of Truphone’s working papers to review the re-calculation.

6.12    If the Company accepts such re-calculation, where any over-payment or under-payment is disclosed, Truphone shall promptly refund (by means of issuing a credit note applied against the next invoice), or amend and reissue the invoice, or the Company promptly will pay (as appropriate), the amount of such over-payment or under-payment.

 

6.13    If the Company notifies Truphone that you do not accept such re-calculation and provides as much detail as is reasonably practicable of the matters it does not accept as being correct, the parties shall meet and attempt to resolve any dispute or difference relating to the amount due. If they are unable to resolve the matters in dispute within the period of ten (10) Business Days following the date of the Company’s notification to Truphone, the matters in dispute shall be referred for settlement to a firm of independent accountants agreed by the parties or in default of agreement within five (5) Business Days at the request of either party to a firm of internationally recognized accountants selected by a mutually-agreeable neutral arbiter. The certificate of such independent firm as to the amount payable shall be final and binding and the costs of such exercise shall be borne as such firm shall determine.

6.14    The paying party shall pay such sum as is determined in accordance with Sections 6.9 to 6.12 inclusive to the receiving party within five (5) Business Days of the date of exhaustion of the relevant procedure in each case.

6.15    For the purposes of this Article 6, Business Days shall mean Monday to Friday excluding any public holiday in the State of Delaware.

7.       SIM Card

7.1.     The SIM Card and all technology, intellectual property and documentation relating to it, the Devices, and the Service shall remain Truphone’s property or the property of its applicable licensors. Truphone grants the Company a revocable, conditional, non-exclusive, non-assignable, non-sub-licensable license for the Company and its End Users to use the SIM card and Service in accordance with this Agreement.  Truphone reserves the right to recall any SIM card from the Company or any End User at any time.   

7.2.     Truphone warrants that Truphone’s intellectual property rights associated with the SIM Card and Service are subject to protection by means of patents and design rights (registered and unregistered). Truphone further warrants that Truphone is authorized to provide the Service in the countries where the Service is made available to the public.

7.3.     The Company shall not, and shall cause all End Users not to, infringe, misappropriate, dilute or otherwise violate the intellectual property rights of Truphone or any third party. Except for the limited license to use the Services as mentioned in Section 7.1 above, the Company’s purchase of Services and Devices does not grant the Company, any End User, or any other party any license or other right to copy, modify, reverse engineer, download, redistribute, or resell any intellectual property of Truphone or others related to the Services and Devices, and such intellectual property may be used only with the Service unless expressly authorized by Truphone in writing in advance. The Company acknowledges and agrees that any violation of this Article 7 irreparably harms Truphone in a manner that cannot be fully or adequately redressed by money damages and for which Truphone shall be entitled to immediate injunctive relief in addition to all other remedies available.

8.       Telephone Numbers

Truphone reserves all rights attached to the telephone numbers attributed to the Company and/or attached to the Service provided by Truphone. Subject to available number portability obligations, Truphone may change, withdraw or otherwise alter such telephone numbers or any other address-element at Truphone’s discretion, without damages payable or other liability to  the Company, should any technical, commercial, or other reason, or any applicable laws, rules, or regulations, so require.

9.       Termination of the Service

by Truphone

9.1.     Truphone reserves the right to terminate this Agreement and cease supplying the Service in the event that the Company materially breaches any of this Agreement’s terms and conditions or if any End User performs or fails to perform any act, which if performed or not performed by the Company, would constitute a breach of this Agreement.

9.2.     In the event that the Company does not use the SIM card for any continuous period of 180 days, Truphone reserves the right to invalidate the SIM card and/or call balance components and cancel the Company’s account and the Service without prior notice and without any refund, repayment or compensation.

9.3.     Truphone reserves the right to terminate this Agreement at any time during the Initial Period in Truphone’s sole discretion without any liability on fourteen (14) days’ notice 

by the Company

9.4.     The Company may terminate this Agreement in the following circumstances 

a) if Truphone varies the terms and conditions of this Agreement which results in an excessive increase in charges to the Company or alters  the Company’s rights herein to its detriment, unless such variations are imposed on Truphone as a direct result of new legislation, statutory instrument, court order, government regulation or license;

b) at any time during the Initial Period or the Contract Period on fourteen (14) days written notice;

c) Truphone is no longer able to provide the Service;

9.5.     On cancellation of this Agreement the SIM card and any associated products must be returned to Truphone before the end of the applicable notice period and shall be at the Company’s sole cost and risk.

Early Termination Fees

9.6.     Where, during the Minimum Contract period,  the Company terminates the Agreement without cause or where the Agreement is terminated by Truphone due to a breach by the Company of these Truphone terms and conditions then, in addition to any other fees, charges and losses due to Truphone and without prejudice to any other rights and liabilities accruing to Truphone, the following early termination fees shall be due and payable by the Company:

a) There is no early termination fee payable if the Company terminates within the first thirty (30) days of the Agreement;

b) After the first thirty (30) days the early termination fee will depend on the Device and Service plan purchased from Truphone. The respective early termination fee can be found on the Website – www.truphone.com.

c) The early termination fee will be reduced on a monthly basis for the remaining duration of the Minimum Contract Period. The sliding scale of the monthly reduction in the early termination fee can be found on the Website – www.truphone.com.

d) There is no early termination fee applicable for the termination of the Agreement after the Minimum Contract Period where the Agreement is extended beyond the Minimum Contract Period.

e) The early termination fee is calculated on a per End User basis.

f) The early termination fee for terminating the Agreement where Truphone has not provided the Company with any Devices will be $35 per End User.  

10.      Liability

10.1    This Section 10 sets out the entire financial liability of Truphone to the Company (including any liability for the acts or omissions of Truphone’s employees, agents, consultants and subcontractors) in respect of:

a) The provision of the Service

b) any breach of the Agreement

c) any use made by  End Users of the Service; or

d) any representation, statement, or tortious act or omission (including negligence) arising under or in connection with the Agreement.

10.2    All warranties, conditions and other terms implied by statute or common law are to the fullest extent permitted by law excluded from the Agreement.

10.3    Nothing in this Agreement shall limit or exclude a Party’s liability to the other Party:

a) for death or personal injury caused by negligence;

b) for fraudulent misrepresentation; or

c) for any other liability that may not be limited or excluded by law, or

d) under Section 10.11(a).

e) In the case of your liability, to pay fees or charges when due to us under this Agreement.

10.4    SUBJECT TO SECTION 10.3, IN NO EVENT SHALL TRUPHONE BE LIABLE TO THE COMPANY, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE OR BREACH OF STATUTORY DUTY), OR OTHERWISE ARISING OUT OF OR IN CONNECTION WITH THE PERFORMANCE OR CONTEMPLATED PERFORMANCE OF THIS AGREEMENT, FOR ANY INDIRECT, INCIDENTAL, SPECIAL, OR CONSEQUENTIAL LOSSES OR DAMAGES INCURRED BY THE COMPANY OR ANY END USER, OR FOR ANY LOSS OF PROFIT, REVENUE, CONTRACTS, DATA, GOODWILL OR OTHER SIMILAR LOSSES OR FOR ANY LOSS OR CORRUPTION OF DATA OR INFORMATION OR ANY SPECIAL OR PURE ECONOMIC LOSS, COSTS, DAMAGES, CHARGES OR EXPENSES.

10.5    SUBJECT TO SECTIONS 10.3 AND 10.4, TRUPHONE’S TOTAL AGGREGATE LIABILITY IN CONTRACT, TORT (INCLUDING NEGLIGENCE OR BREACH OF STATUTORY DUTY), OR OTHERWISE, ARISING IN CONNECTION WITH THE PERFORMANCE OR CONTEMPLATED PERFORMANCE OF THIS AGREEMENT, INCLUDING THE PROVISION OF THE SIM AND DEVICE(S) (IF APPLICABLE), SHALL BE STRICTLY LIMITED TO THE ANNUAL CHARGES PAID BY YOU DURING THE FIRST YEAR OF THE CONTRACT PERIOD (COMMENCING ON THE DATE OF THE COMPANY’S AGREEMENT WITH TRUPHONE) FOR THE RELEVANT SERVICE.

10.6    Truphone will not be liable or responsible for any failure to perform, or delay in performance of, any of Truphone’s obligations  herein or provision of the Service (i) where such delay or performance failure is due to any of  acts or omissions of the Company or any End User, including without limitation where the Company or any End User has provided incorrect data or information; or (ii) network failure, network outage, network congestion, power failures; or (iii) that is caused by, or results, whether in whole or in part, from, events outside Truphone’s reasonable control, including but not limited to strikes, lock-outs or other industrial disputes (whether involving Truphone’s workforce or any other party), Act of God, war, terrorist activity, malicious damage, compliance with any law or governmental order or default of suppliers or subcontractors

10.7    Truphone and Truphone’s vendors, suppliers or licensors are not liable for any damages arising out of or in connection with content or information accessed while using Truphone’s Service, including without limitation through the internet or interruption or failure in accessing or attempting to access emergency services from the Company’s phone, including through 911, E911 or otherwise.

10.8    The Company represents and warrants now and throughout the Contract Period that (i) the Company is not located in a country that is subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a “terrorist supporting” country; and (ii) the Company is not listed on any U.S. Government list of prohibited or restricted parties. If it is established that the Company is in breach of any of these representations or warranties then Truphone shall have the right to immediately terminate the Service and the Company shall forfeit any credit remaining on the Company’s account.

10.9    In no event shall the Company have any right of action, recourse, or remedy against any third party licensors, suppliers, or contractors of Truphone in connection with this Agreement nor will the Company attempt to initiate any such right.

10.10  Truphone makes no representations or warranties, express or implied, including, to the extent allowed by applicable law, any implied warranty of merchantability or fitness for a particular purpose concerning the Service.  The Service is provided on an “as is” and “as available” basis.  Truphone does not promise uninterrupted or error-free Service and does not authorize anyone to make any representations warranties on Truphone’s behalf or otherwise to bind Truphone.  This does not deprive the Company of any warranty rights the Company may have against anyone else.

10.11  The Company’s liability:

a) the Company shall be liable for all charges or fees incurred in using the Service. In the event of loss or theft of any SIM card it is THE COMPANY’S SOLE responsibility to inform TRUPHONE immediately so that Truphone can prevent any further use of the Service by another unauthorised person. Truphone provides no guarantees or warranties in relation to the prevention of the use of the Service on a lost or stolen SIM card and DISCLAIMS ALL liability for any unauthorised use of THE COMPANY’S account. The Company will be solely responsible for the SIM card and its use to obtain the Service and will not be entitled to obtain any compensation from TRUPHONE for its loss or theft or any use after its loss or theft; and

b) THE COMPANY SHALL BE LIABLE FOR THE FULL RETAIL COST OF THE REPLACEMENT OF ANY device ThAT HAS BEEN PROVIDED TO THE COMPANY. IN THE EVENT THAT SUCH device IS LOST, STOLEN OR DAMAGED, THE COMPANY’S LIABILITY TO TRUPHONE UNDER THIS section 10.11(b) SHALL NOT LIMIT THE COMPANY’S LIABILITY TO TRUPHONE UNDER section 10.11(a).

11      Changes to this Agreement and the Service

11.1    Truphone reserves the right to change this Agreement from time to time and make changes to the Service or any promotion or charges relating to the Service at any time.

11.2    Truphone shall give the Company notice of any such changes. In relation to Truphone’s Acceptable Use Policy and Privacy Policy Truphone may make changes to these policies, and the Company agrees that an appropriate publication on the Website is an acceptable notice of any such changes.

12      Governing Law and Legal Compliance

12.1    This Agreement shall be governed by U.S. federal law or the law of the State of Delaware, as applicable, without resort to the conflict of law provisions thereof, and shall be subject to the jurisdiction of and venue in the Delaware Courts.

12.2    Despite the governing law provided above, the Company may be subject to various rules, regulations and laws which may also apply to the Company in the State or country in which the Company or its End Users access and/or use the Service, in particular where the Company chooses its home country to be a country other than the United States of America.

12.3    Subject to the terms of Truphone’s Privacy Policy Truphone may be required to collect further personal information from the Company in order to satisfy Truphone’s compliance with any legal or regulatory compliance requirement. If Truphone requests such information from the Company and indicates that this is for legal or regulatory compliance then the Company promptly shall provide Truphone with the requested information and in no event will provide Truphone with false or misleading information.

13      Dispute Resolution and Arbitration

13.1    TRUPHONE AND THE COMPANY EACH AGREE TO SETTLE DISPUTES (EXCEPT CERTAIN SMALL CLAIMS) ONLY BY ARBITRATION AS SET FORTH IN THIS SECTION 13. THE PARTIES ACKNOWLEDGE AND AGREE THAT, ALTHOUGH THERE IS NO JUDGE OR JURY IN ARBITRATION, AND REVIEW IS LIMITED, THE ARBITRATOR IN ANY SUCH ARBITRATION SHALL BE PERMITTED TO AWARD THE SAME DAMAGES AND RELIEF, AND MUST HONOR THE SAME LIMITATIONS IN THIS AGREEMENT, THAT A COURT WOULD. IF AN APPLICABLE STATUTE PROVIDES FOR AN AWARD OF ATTORNEY'S FEES, SUCH ARBITRATOR SHALL BE PERMITTED TO AWARD THEM. TRUPHONE AND THE COMPANY ALSO EACH AGREES, TO THE FULLEST EXTENT PERMITTED BY LAW THAT THE FEDERAL ARBITRATION ACT APPLIES TO THIS AGREEMENT. EXCEPT FOR QUALIFYING SMALL CLAIMS COURT CASES, ANY CONTROVERSY OR CLAIM ARISING OUT OF OR RELATING TO THIS AGREEMENT, OR ANY PRIOR AGREEMENT FOR WIRELESS SERVICE WITH TRUPHONE OR ANY OF TRUPHONE’S AFFILIATES OR PREDECESSORS IN INTEREST, OR ANY PRODUCT OR SERVICE PROVIDED UNDER OR IN CONNECTION WITH THIS AGREEMENT OR SUCH A PRIOR AGREEMENT, OR ANY ADVERTISING FOR SUCH PRODUCTS OR SERVICE, WILL BE SETTLED BY ONE OR MORE NEUTRAL ARBITRATORS BEFORE THE AMERICAN ARBITRATION ASSOCIATION ("AAA") OR THE BETTER BUSINESS BUREAU ("BBB"). THE COMPANY CAN ALSO BRING ANY ISSUES THE COMPANY MAY HAVE TO THE ATTENTION OF FEDERAL, STATE, OR LOCAL GOVERNMENT AGENCIES AND THEY CAN, IF THE LAW ALLOWS, SEEK RELIEF AGAINST TRUPHONE ON THE COMPANY’S BEHALF.

13.2    FOR CLAIMS OVER $10,000, THE AAA'S WIRELESS INDUSTRY ARBITRATION ("WIA") RULES WILL APPLY. FOR CLAIMS OF $10,000 OR LESS, THE COMPLAINING PARTY CAN CHOOSE EITHER THE AAA'S SUPPLEMENTARY PROCEDURES FOR CONSUMER–RELATED DISPUTES, AN INDIVIDUAL ACTION IN SMALL CLAIMS COURT, OR THE BBB'S RULES FOR BINDING ARBITRATION. EACH OF TRUPHONE AND THE COMPANY MAY BE REQUIRED TO EXCHANGE RELEVANT EVIDENCE IN ADVANCE. IN LARGE/COMPLEX CASES UNDER THE WIA RULES, THE ARBITRATORS MUST APPLY THE FEDERAL RULES OF EVIDENCE, AND THE NON-PREVAILING PARTY MAY HAVE THE AWARD REVIEWED BY A PANEL OF 3 NEW ARBITRATORS.

13.3    THIS AGREEMENT DOES NOT PERMIT CLASS ARBITRATIONS.  COMPANY WAIVES ANY RIGHT TO COMMENCE ANY COMPANY CLASS OR COLLECTIVE ACTION.

13.4    ANY ARBITRATION AWARD MADE AFTER COMPLETION OF ARBITRATION HEREUNDER IS FINAL AND BINDING AND MAY BE CONFIRMED AND ENFORCED IN ANY COURT OF COMPETENT JURISDICTION. AN AWARD AND ANY JUDGMENT CONFIRMING IT ONLY APPLIES TO THE ARBITRATION IN WHICH IT WAS AWARDED AND CANNOT BE USED IN ANY OTHER CASE EXCEPT TO ENFORCE THE AWARD ITSELF.

13.5    IF FOR SOME REASON THE PROHIBITION ON CLASS ARBITRATIONS SET FORTH IN SUBSECTION (3) ABOVE IS DEEMED UNENFORCEABLE, THEN THE AGREEMENT TO ARBITRATE WILL NOT APPLY.

13.6    IF FOR ANY REASON A CLAIM PROCEEDS IN COURT RATHER THAN THROUGH ARBITRATION, EACH OF THE COMPANY AND TRUPHONE VOLUNTARILY AND IRREVOCABLY WAIVE ANY RIGHT TO TRIAL BY JURY.

13.7    THIS SECTION 13 IS A MATERIAL INDUCEMENT FOR THE PARTIES ENTERING INTO THIS AGREEMENT.

14      Complaints

14.1    If the Company has any complaints about the Service, the Company should send them in the first instance to business.help@truphone.com. Truphone’s complaints policy and procedure can be found at www.truphone.com.

15      Privacy

15.1    Truphone takes Truphone’s customers’ privacy seriously. Please read Truphone’s Privacy Policy for full details which can be found at the Website. Although Truphone respects the privacy of our customers, the Service may be subject to interception by law enforcement agencies and other governmental bodies. In addition Truphone may be compelled to disclose the Company’s personal data where Truphone is required to do so by a valid order of an authorised governmental representative or court order.

15.2    The Company consents to Truphone transferring the Company’s personal data to countries which do not provide the same level of data protection as the United Kingdom if Truphone deems it necessary for the provision of the Service.

15.3    Truphone will always use and process the Company’s personal data in compliance with applicable data protection laws, as amended from time to time.

15.4    Truphone will provide the Company with a copy of the Company personal data that Truphone holds, provided that the Company requests access to such information in writing and pays Truphone an administration fee of $20.

16      Miscellaneous

16.1    Truphone may compile and release information regarding the Company and the Company’s use of the Service on an anonymous basis as part of a customer profile or similar report or analysis.

16.2    All licenses not expressly granted in this Agreement are reserved and no other licenses, immunity or rights, express or implied are granted by us, by implication, estoppel, or otherwise. Except to the extent of the license granted in Section 7.1, Truphone reserves all right, title, or interest in or to the SIM Card, Devices or Service.  This Agreement does not grant the Company any rights to use any trademarks, logos or service marks belonging to Truphone whatsoever. The Company shall not, and it shall cause its End Users not to, reverse engineer, decompile, reverse compile, disassemble, or otherwise obtain, or attempt to obtain, the source code for any software included in the SIM Card, Device or Service.  All confidential, proprietary, and trade secret information provided or disclosed by Truphone to the Company or any End User in connection with this Agreement shall not be disclosed or provided to any third party and shall not be used other than by the Company or its End Users in connection with use of the Service as permitted hereunder.

16.3    The Company may not transfer, assign, or delegate any or all of the Company’s rights or obligations under this Agreement without Truphone’s prior written consent.

16.4    All notices given by the Company to Truphone must be in writing (fax, email, and letter) to one of the following addresses: (i) General Counsel, 4819 Emperor Boulevard, suite 400, Durham, NC 27703; or (ii) legal@truphone.com; or as otherwise notified to the Company by Truphone.

16.5    Failure to enforce any of Truphone’s rights under this Agreement does not result in a waiver of that right or any other rights of Truphone herein.

16.6    Truphone reserves the right to assign, delegate, and subcontract any of its rights, obligations, and duties contained in this Agreement.

16.7    If any provision of these terms and conditions is found to be unenforceable, all other conditions shall remain unaffected.

16.8    Truphone is a trading name and registered trade mark of Truphone Limited, company number 04187081 whose registered address is 4 Royal Mint Court, London, EC3N 4HJ, United Kingdom. Truphone are regulated by Ofcom and comply with the regulatory obligations of the FCC in the USA. Truphone’s VAT registration number is GB 851 5278 19. Truphone, Inc. is a wholly owned subsidiary of Truphone Limited.

16.9    This Agreement, together with any documents referred to and incorporated by reference in it, constitutes the entire terms and conditions of the agreement and supersedes or extinguishes any prior drafts, agreements, undertakings, warranties and arrangements of any nature, whether in writing or oral, regarding such subject matter.  Unless provided for elsewhere in this Agreement, this Agreement may only be modified or otherwise amended by written agreement of the parties.  This shall not exclude any liability that a party would otherwise have to the other party in respect of any statement made fraudulently by that party prior to the date of this Agreement.

16.10  To the extent of any conflict or inconsistency between any  of the terms or conditions of this Agreement, the descending order of precedence of interpreting such terms and conditions shall be as follows:

  1. Schedule A (if applicable)
  2. Agreement cover page (Additional Terms);
  3. General terms and conditions (Schedule 1);
  4. Policy documents (Acceptable Use Policy, Privacy Policy and Fair Usage Policy) and terms from the Website incorporated herein by reference.

16.11 Except as expressly set forth in this Agreement, neither party shall be precluded from seeking remedies at law, in equity, or otherwise for breaches or other violations of this Agreement.  The Company shall indemnify, defend, and hold harmless Truphone and all employees, officers, directors, agents, and other representatives (collectively, “Representatives”) of Truphone from and against any claims, actions, demands, suits, and proceeding brought by any third party against Truphone or such Representatives, and all losses, liabilities, damages, costs, and expenses (including without limitation reasonable attorneys’ fees) related thereto, arising from or relating to any breach of this Agreement by the Company, any negligence or wilful misconduct of the Company of any of its Representatives or End Users, and any act or omission of any such Representatives of the Company or any End Users, which, if performed or not performed by the Company would constitute a breach of this Agreement by Company.  

BlackBerry Terms & Conditions

17.       BlackBerry Terms & Conditions

17.1.    This clause 17 only applies if the Company has a BlackBerry product the End Users are using with a Truphone SIM, where such BlackBerry product has been provided by Truphone.

17.2.    For the purposes of this clause 17 the following definitions apply:

i. BES means Blackberry Enterprise Server, including   related  Software, for accessing certain support services;

ii. BIS means BlackBerry Internet Service which is RIM’s standard professional consumer service allowing Company to set up an email account on its BlackBerry Handheld and to access certain internet sites from the BlackBerry Handset;

iii. RIM means Research in Motion UK Limited

17.3.    The provision of the BlackBerry Hardware (comprising the BlackBerry Handset and the BlackBerry accessories), the BIS and/or the BES is subject to the preceding terms and conditions set out in this document, together with the BlackBerry Terms & Conditions set out in this clause 17.

17.4.    Company must activate the BIS and/or BES by going to www.truphone.blackberry.com  (or such other website as Truphone may notify the Company from time to time) or via End User’s BlackBerry Handset.

17.5.    In order to activate the BES Company must do this in conjunction with the BES Administrator and using the Enterprise Activation software on the End User BlackBerry Handheld.

17.6.    The BES support terms and conditions are subject to a separate agreement between Company and Truphone or RIM as the case may be. 

17.7.    The BIS and/or BES may be available while roaming abroad. The BlackBerry Handset may synchronise with Company’s email accounts automatically resulting in GPRS charges. If Company does not wish its End Users to receive email whilst abroad the Company can turn off the BlackBerry internet service (refer to user manual).

17.8.    The Company’s use of the BIS and/or BES is subject to Company’s acceptance of the Agreement  and the BlackBerry terms and conditions of RIM as may be amended from time to time and which can be found at: http://us.blackberry.com/legal/terms-and-conditions

17.9.    If Company is only taking the Truphone SIM and are using an existing BlackBerry Handset then the original Blackberry terms and conditions made available to Company when it purchased the BlackBerry Handset will continue to apply to Company and its End Users for the BlackBerry usage, and the Service terms and conditions will be as set out in this Agreement. If Company is purchasing a BlackBerry Handset with a SIM from Truphone then RIM’s BlackBerry terms and conditions shall be made available to Company on request when the Company first activates the BIS and/or BES. A copy of such terms and conditions is available in the BlackBerry Handset package and is available from Truphone upon request.

17.10.  In the event of any inconsistency between this clause 17 and the terms and conditions set out elsewhere in this Agreement, the latter shall prevail.

17.11.  Truphone and/or RIM reserve the right to amend or replace the BIS and/or BES, or these BlackBerry Terms & Conditions, or to withdraw the BIS and/or BES, at any time on reasonable notice. Truphone and/or RIM reserve the right to withdraw the whole or part of the BIS and/or BES upon providing not less than 30 days’ notice.

17.12.  Each purchase by Company from Truphone of a BlackBerry Handset is covered by the BlackBerry Handheld Limited Warranty, the terms of which can be found at: www.blackberry.com/legal/warranty/handheld or can otherwise be obtained from Truphone upon request.

17.13.  Such warranty shall only apply to BlackBerry Handsets purchased from Truphone and returned to the place of purchase within twelve (12) months from the date of purchase, where it shall be repaired or replaced at Truphone’s sole option, without charge to Company. All repairs to such BlackBerry Handsets shall be warranted for ninety (90) days from the date of repair, or the balance of the original warranty, whichever is the longer. The ninety (90) day repair warranty is an extension of the full warranty and applies to the entire BlackBerry Handset, not just the repaired components.

17.14.  The warranty referred to in clause 17.12 above does not apply to normal wear and tear or if any component of the BlackBerry Hardware is opened or repaired by someone not authorized by RIM, and does not cover repair or replacement of any BlackBerry Hardware damaged by misuse, moisture or liquids, proximity or exposure to heat, accident, abuse, neglect, misapplication, or defects due to repairs or modifications made by anyone other than RIM or RIM’s authorized service representative, nor does the warranty cover physical damage to the surface of the BlackBerry Hardware, including cracks or scratches on the LCD screen.

17.15.  Repair or replacement of the BlackBerry Hardware or the affected component are the exclusive remedies provided in conjunction with the purchase and use of the BlackBerry Hardware. Truphone hereby disclaim all other warranties, conditions, representations or guarantees of any kind, either express or implied, including but not limited to implied warranties of merchantability, satisfactory quality and/or fitness for purpose. Company’s statutory rights as a consumer are not affected by this clause.

17.16.  Nothing in this Agreement shall be taken as excluding or attempting to exclude or in any way restrict any liability for death or personal injury to the extent arising directly from Truphone’s negligence, or that of our employees or agents.

17.17.  The BlackBerry Hardware, software and/or accessories may include encryption software that is subject to domestic and foreign legal restrictions that restrict export, import and use of the BlackBerry Hardware, software and/or accessories and End Users may not be permitted to roam to certain countries with or using the BlackBerry Hardware, software and/or accessories. It is Company’s own responsibility to ensure that using or enabling international roaming using the BlackBerry Hardware, software and/or accessories, is permitted in the countries End Users are travelling to. Truphone shall have no liability for End User’s usage in such prohibited countries and Truphone shall not be liable for failing to advise Company of any country where such usage is prohibited. Company agrees to indemnify Truphone from any loss or liability Truphone may suffer as a result of End User and Company’s use of the BlackBerry Hardware, software and/or accessories and the Truphone Services in any such countries where such use is prohibited.

17.18.  By Company and End User’s use of the BlackBerry Hardware, software and/or accessories Company are agreeing to be bound by the terms of the BlackBerry end user software license agreement, the terms of which can be found at http://us.blackberry.com/legal/terms-and-conditions or can otherwise be obtained from Truphone upon request.