1. DEFINITIONS
The capitalized terms used in this Agreement shall have the following meaning:
“Affiliate” means any legal entity controlled by a Party with at least fifty (50) percent of its voting power, or any legal entity which owns at least fifty (50) percent of the voting power of a Party.
"Agreement" means these terms and conditions, any Celitech Service Distribution Agreement signed by the parties, the Annex(es), the Schedule(s), Price Lists and amendments to the Agreement signed by a duly authorized representative of each Party and any other applicable terms and conditions incorporated by reference.
“Authorizations” means regulatory and/or governmental approvals, consents, telecommunication licenses and other licenses, registrations, or other permissions or authorizations that may be required by either Party in order to perform their respective obligations hereunder.
“Business Day” means every calendar day except Saturdays, Sundays and federal holidays in the United States.
“End User” refers to the individual or machine using the Mobile Services provided by Celitech to communicate. The End User can be a direct subscriber of Buyer, or a subscriber of one of Buyer’s resellers.
“Global Title” is an address used for routing signaling messages between mobile Networks.
“GPRS” (short for General Packet Radio Services) is a packet-based GSM communication service that provides continuous connection to the Internet or private networks for Mobile Devices. In this contract, the term GPRS also refers to next generation packet-based technologies such as UMTS, HSPDA or LTE.
“GSM” (short for Global System for Mobile Communications) is a digital cellular phone technology based on TDMA. GSM defines the entire cellular system, not just the TDMA air interface.
“IMSI” (short for International Mobile Subscriber Identity) is a unique number associated with all GSM Mobile Devices. It is usually stored in a SIM/eSIM inside the Mobile Device and is sent by the Mobile Device to the Network to identify the subscriber.
“Mobile Device” means any device by which an End User consumes Mobile Services on a Network. This can include a mobile phone, laptop, pad, wearable, machine or a SIM-less GSM module, among other things.
"Mobile Services" or “Services” means any service provided by Celitech or its network partners allowing a communication using the GSM standard. This may include communication via cellular data, voice, video, text messaging, USSD or GPRS, whether initiated using a SIM card or not. Mobile Services may also include any SIP services provided by Celitech under this Agreement.
“Network” is the mobile GSM network on which the End User is consuming Mobile Services at any given time.
“OSS/BSS” (short for Operational Support Systems and Billing Support Systems) are the software systems used by Celitech and Buyer to manage data and records pertaining to Mobile Services received by their subscribers.
“Price List” means the document mentioning the rates for GPRS/cellular data for every country where service is provided, exclusive of any taxes.
“SIM” or “SIM card” (short for Subscriber Identity Module) is a smart card that stores data for GSM cellular telephone subscribers.
“eSIM” or “iSIM” (short for embedded/integrated Subscriber Identity Module) is a smart module integrated/embedded in smartphones and stores data for GSM subscribers.
“API” and/or “SDK” Application Programming Interface and/or Software Development Kit, which can be used to connect with the Connectivity Platform
Other words and phrases used in this Agreement shall have the meaning generally understood in the telecommunications industry. This Agreement shall be construed in accordance with its fair meaning and not for or against either party on account of which party drafted this Agreement.
Buyer will notify Celitech as soon as it is prepared to commence provisioning of the Mobile Service, at which time Buyer and Celitech will promptly undertake such provisioning.
Each Party understands that due to the complex nature of the Mobile Service provided by the other Party, and the involvement of third-party network partners, quality on certain Networks might occasionally be unsatisfying. In such event, Celitech shall use reasonable efforts to restore industry standard quality of service; however, it shall not be under any obligation to offer the Buyer a temporary surrogate service. In all cases, Celitech shall use its best effort to provide the Buyer with best Quality of Service.
4.1 In addition to any other rights at law or in equity, and not withstanding paragraph 6 above, either Party may reasonably, after providing a prior notice, suspend the delivery of Mobile Services. For example, a suspension of Mobile Services could occur when:
In the event of any suspension of service by a Party, it shall remain liable to the other Party for any charges for Mobile Services rendered through and including the date of suspension.
4.2 IN NO EVENT SHALL EITHER PARTY OR ITS OFFICERS, DIRECTORS, EMPLOYEES, AND AGENTS BE LIABLE TO THE OTHER PARTY FOR ANY SPECIAL, INDIRECT, INCIDENTAL, CONSEQUENTIAL, PUNITIVE, OR EXEMPLARY DAMAGES, INCLUDING WITHOUT LIMITATION, LOSS OF REVENUE, LOSS OF PROFITS, LOSS TO OTHER CARRIERS, CLIENTS OR GOODWILL ARISING FROM A SUSPENSION OF SERVICE
Each Party agrees to comply with the laws of United States of America and the laws of the European Union, Buyer’s home country and the End User’s home country with regards to data privacy rules. Either Party also agrees to hold the other harmless of any and all claims by End Users, the government of the United States of America or foreign governments regarding data privacy breaches by the other Party.
6.1(a) The Parties agree that their affiliates, including parents and subsidiaries, and the Parties’ and their affiliates’ employees, officers or directors, shall have no liability under this Agreement. The Parties recognize that neither Party has control over how a foreign administration or third-party network partner establishes their rules and conditions pertaining to Mobile Services. The Parties agree that neither Party shall be liable for any loss or damage sustained by the other Party, its resellers or its End Users due to any failure in or breakdown of the communication facilities or telecommunications equipment associated with providing the Mobile Services, for any interruption or degradation of the Mobile Services whatsoever the cause or duration, or for any other cause or claim whatsoever arising under this Agreement.
6.1(b) Either Party shall indemnify, defend and hold the other harmless from and against all liabilities and costs (including reasonable attorneys’ fees) arising from any and all claims by any person based on the content of any communication transmitted by it using the Mobile Services provided pursuant to this Agreement. Either Party shall indemnify, defend and hold the other harmless for all causes of action, claims, liabilities or expenses asserted or incurred by End Users due to its marketing efforts.
6.2 With the exception of payment obligations, and except for liabilities under Sections 6.4, 16.1, and 16.6, each Party’s’ liability to the other Party in contract, tort or otherwise (including liability for negligence) under or in connection to this Agreement, for the incidents occurring in each twelve (12) months period from the date this Agreement was executed, shall be limited to the lesser of these amounts: (i) fifty thousand (50,000) USD or (ii) the total amount paid by the other Party during the last twelve months. Each Party's liability for death or personal injury resulting from its negligence or from negligence of its own representatives, personnel, or other persons appointed by the Parties, or for willful misrepresentation is not excluded or limited.
6.3 IN NO EVENT SHALL EITHER PARTY OR ITS OFFICERS, DIRECTORS, EMPLOYEES, AND AGENTS BE LIABLE TO THE OTHER PARTY FOR ANY SPECIAL, INDIRECT, INCIDENTAL, CONSEQUENTIAL, PUNITIVE, OR EXEMPLARY DAMAGES, INCLUDING WITHOUT LIMITATION, LOSS OF REVENUE, LOSS OF PROFITS, LOSS TO OTHER CARRIERS, CLIENTS OR GOODWILL, ANTICIPATED SAVINGS ARISING IN ANY MANNER FROM THIS AGREEMENT AND THE PERFORMANCE OR NONPERFORMANCE OF BUSINESS HEREUNDER.
6.4 Buyer shall be responsible for clearly and conspicuously disclosing to your End Users (including without limitation in any posted terms and conditions and in any written agreements with your customers) (i) that you (and not we) are solely responsible for all content and any services you provide to End Users or any messages or content sent (or attempted to send) to, from, between or among, end users, (ii) that we are not responsible for any disputes between you and your End Users, (iii) regarding all disclaimers, warranty limitations, and limitations of liability, by Celitech herein or otherwise with respect to the Services; and (iv) with respect to use of the Services by your End Users, such End Users are responsible for complying with, and subject to, all the applicable End User terms made available by Celitech online (Celitech’s End User Terms of Service). You shall not state or imply otherwise. Buyer shall not disparage Celitech or any of its products, services, or brands. Buyer shall perform all services and efforts hereunder in a professional and workmanlike manner, in accordance with all industry standards and all applicable laws, and not in any manner that could reasonable disparage Celitech nor adversely affect Celitech’s reputation. Buyer and its applicable representatives shall familiarize itself with the Services sufficiently to ensure that it can accurately describe them and not be misleading or fraudulent (whether intentionally or unintentionally), and shall not “over-promise” nor make any unauthorized warranties or claims about Celitech or the Services to End Users. Buyer hereby agrees to indemnify, defend and hold Celitech and its related parties harmless, from any allegation, loss, liability, claim made against us by any End Users or otherwise arising out of any breach of this paragraph.
EITHER PARTY MAKES NO WARRANTY, EXPRESS OR IMPLIED, WITH RESPECT TO THE MOBILE SERVICES PROVIDED HEREUNDER UNLESS IT IS PREVIOUSLY COMMUNICATED IN WRITING (e.g via E-MAIL or MAIL). BOTH PARTIES SHALL FOLLOW PRUDENT INDUSTRY STANDARDS IN PROVIDING THE MOBILE SERVICES.
8.1 We reserve the right to determine if, when, and how much credit to extend to you, and to require prepayments in advance, in a reasonable amount based on anticipated upcoming charges for a reasonable period of time, based on such determinations of creditworthiness.
8.2 By submitting any payment authorization through the Services (e.g., credit card on file, direct debit, electronic funds transfers, wire transfers, etc.), Buyer authorizes Celitech to charge fees to the account you identify from time to time. You must keep all billing information, including payment method(s), up to date. You agree to pay us for all charges incurred under your account, including all applicable taxes, fees, and surcharges. You authorize and direct us to retain information about the payment method(s) associated with your account and to charge your designated payment method for these charges or, if your designated payment method fails, to charge any other payment method you have on file with us. If we do not receive payment from your designated payment method or any other payment method on file, you agree to pay all amounts due upon demand by us.
This Agreement may not be assigned or transferred by either Party without the prior written consent of the other Party; provided, however, that either Party may assign this Agreement to an Affiliate, or to a successor in interest whether by merger, reorganization, or transfer of all or substantially all of its assets or otherwise. The effectiveness of any assignment shall be conditioned upon the assignee’s written assumption of the rights, obligations and duties of the assigning Party, and the assignee’s credit approval by the other Party.
No failure or omission by either Party to carry out or observe any of the terms and conditions of this Agreement shall give rise to any claim against such Party or be deemed a breach of this Agreement if such failure or omission arises from an act of God, or an act of a governmental regulatory body or any other circumstances commonly known as force majeure.
11.1 For the entire term of this agreement and for a period of three (3) years after its termination, each Party shall maintain the confidentiality of all information or data of any nature provided to it by the other Party that contains a conspicuous marking identifying it as “Confidential” or “Proprietary” (the “Information”). Any financial and commercial Information in this Agreement is considered highly Confidential, and release of such Information shall be deemed a serious breach of this Clause and this agreement. Each Party shall use the same efforts (but in no case less than reasonable efforts) to protect Information it receives from the other Party as it accords to its own confidential and proprietary information. The above requirements shall not apply to Information which is already in the possession of the receiving Party through no breach of an obligation of confidentiality to the disclosing Party or any third party, is already publicly available through no breach of this paragraph or has been previously independently developed by the receiving Party. This Agreement shall not prevent any disclosure of Information pursuant to applicable law or regulation, provided that prior to making such disclosure, the receiving Party shall use reasonable efforts to notify the disclosing Party of the required disclosure.
11.2 Both Parties agree that with prior written agreement via email each Party may use the other Party’s name, logo and other trademark in press materials or other publications disclosing the existence of this Agreement. However, both Parties agree and acknowledge that the financial and commercial terms of this Agreement constitute a trade secret and shall not be released to any third party unless required by a valid court order.
12.1 All notices, requests, or other communications hereunder shall be in writing, addressed to the Parties as noted in Schedule C, or to such other address as either Party shall designate by proper notice.
12.2 Notices given by one Party to the other Party under this Agreement shall be in writing and shall be (a) delivered personally, (b) delivered by express delivery service, (c) mailed, certified mail or first-class mail postage prepaid, return receipt requested or (d) delivered by telecopy. Notices will be deemed given as of the earlier of (i) the date of actual receipt, (ii) the next business day when notice is sent via express mail or personal delivery, (iii) three (3) business days after mailing in the case of first class. mail or (iv) on the date set forth on the confirmation in the case of telecopy.
13.1 The Parties desire to resolve disputes arising out of or relating to this Agreement without litigation. Therefore, except for an action seeking a temporary restraining order or an injunction relating to the subject matter of this Agreement, or suit to compel compliance with this dispute resolution process, the Parties agree to use the following alternative dispute resolution procedures as the sole remedy with respect to any controversy or claim arising out of or relating to this Agreement or its breach.
13.2 At the written request of either Party, each Party will appoint a knowledgeable representative to meet and negotiate in good faith to resolve any dispute arising out of or relating to this Agreement. The representatives shall have the discretion to determine the location, format, frequency and duration of their negotiations, and to utilize other alternative dispute resolution procedures such as mediation to assist in the negotiations. All discussions and correspondence among the representatives shall be treated as confidential information developed for the purposes of settlement, exempt from discovery, and shall not be admissible in the arbitration described below or in any other proceeding without the agreement of the Parties.
13.3 If the negotiations do not resolve the dispute within sixty (60) days of the initial written request, the dispute shall be submitted to binding arbitration by a single arbitrator at an organization or independent company selected by both Parties located in the state of California, United States. The Parties agree to undertake all reasonable steps to expedite the arbitration process. Judgment upon any award rendered by the arbitrator may be entered in any court having jurisdiction.
14. TERMINATION
14.1 Either the Buyer or Celitech may terminate this Agreement immediately upon written notice to the other if: (i) the other Party commits a material breach of this Agreement which is capable of remedy and is not remedied within 45 Working Days of written notice from the first Party; or (ii) the other Party commits a material breach of this Agreement which is not capable of remedy.
14.2 Termination of this Agreement shall not end or affect any accrued rights or obligations of either Celitech or Buyer.
14.3 If this Agreement ends or is terminated for any reason, Buyer must immediately and at Buyer’s own expense: (i) disconnect the applications, equipment or infrastructure connected to the Network; and (ii) pay any amounts which Buyer owes Celitech under this Agreement as at the expiry or termination of this Agreement.
15. COMPLIANCE WITH LAWS AND LAW ENFORCEMENT AGENCIES
15.1 Either Party shall not use the Mobile Services in any manner or for any purpose, which constitutes a violation of the laws of the United States, the European Union or the laws of any foreign jurisdiction in which the Mobile Services are being provided.
15.2 In case any of the Mobile Services provided to a Party by the other are subject to investigation by any law enforcement agency, either Party may release the other Party's identity to such law enforcement agency upon receipt of a valid warrant or subpoena under Untied States, European Union or other foreign law. Furthermore, either Party agrees that it will provide to the other or to the law enforcement agency with the identity of the End User or reseller using the Mobile Service in question.
16. INTELLECTUAL PROPERTY RIGHTS AND INDEMNITIES
16.1 The intellectual property rights in respect of all goods and assets, tangible and intangible, (including ‑ without limitation and in the broadest sense ‑ products, services and software) used by the Parties in the context of this Agreement shall remain vested in the Party originating or which has acquired the same. Unless agreed otherwise in writing, nothing in this Agreement shall confer or be deemed to confer on either Party any rights in or license to use any intellectual property right of the other Party.
16.2 Parties shall not be entitled under any terms of this Agreement to use the brand names of the other Party's or the other Party's trade name without written consent of the other Party.
16.3 Each Party shall indemnify ("Indemnifying Party"), defend, and hold the other Party ("Indemnified Party") harmless against any claims, actions, damages, losses, costs and expenditures, including but not limited to attorneys' fees and costs, finally awarded against the Indemnified Party by a court of competent jurisdiction and actually incurred by the Indemnified Party, as a result of any direct infringement of any third party patents, copyrights, trademarks, registered designs, arising out of the Service.
16.4 In the event of any claim being made against the Indemnified Party which may give rise to a claim for indemnification, obligation to indemnify shall be conditional upon the Indemnified Party: (i) notifying the Indemnifying Party in writing of any such claim as soon as reasonably practicable but in any event not later than ten (10) calendar days from receipt thereof by the Indemnified Party; (ii) not making any admission as to liability or agreeing to any settlement or compromise of any such claim without the prior written consent of the Indemnifying Party; and (iii) giving the Indemnifying Party, at its request and expense, full and sole authority to conduct and/or settle all negotiations, proceedings and litigation arising from any such claim, and, at the Indemnifying Party's request and expense, giving the Indemnifying Party all reasonable assistance in connection with the conduct of such negotiations, proceedings and litigation, and acting in accordance with the reasonable instructions of the Indemnifying Party in connection therewith.
16.5 The obligation to indemnify shall not apply: (i) to any infringement arising as a result of Service having been altered, modified or combined with other apparatus or software, services not under control of the Indemnifying Party; or (ii) to the extent that such claim relates to aspects of the Service developed in accordance with specifications, instructions provided by the Indemnified Party or which otherwise incorporate documents, materials, ideas, data or other information provided by the Indemnified Party; or where such claim relates to Service being used other than for the purpose for which they were designed.
16.6 Except as set forth herein, the Indemnifying Party shall not be under any liability in respect of any claims regarding infringement of any third party's intellectual property rights. Except for gross negligence or willful misconduct on the part of Celitech, Buyer indemnifies and agrees to keep Celitech fully indemnified against all costs (including legal costs), claims, proceedings, demands, expenses, losses and liabilities of whatsoever nature arising out of or in connection with (a) any breach of this Agreement by Buyer; (b) any breach or inaccuracy in any of Buyer’s representations or warranties contained in this Agreement; (c) any services provided by Buyer to End User; (d) any loss of or damage to any property or injury to or death of any person caused by any negligent act or omission or willful misconduct of Buyer; and (e) any claims of infringement of copyright, patent, trade mark, industrial design or any intellectual property rights attributable to the acts of Buyer, its officers, employees, agents or contract. These obligations of indemnity continue after termination of this Agreement.
17. MISCELLANEOUS
17.1 Any paragraph or any other provision of this Agreement which is or becomes illegal, invalid or unenforceable shall be severed here from and shall be ineffective to the extent of such illegality, invalidity or unenforceability and shall not affect or impair the remaining provisions hereof, which provisions shall remain in full force and effect.
17.2 Descriptive headings in this Agreement are for convenience only and shall not affect the construction of this Agreement.
17.3 The terms and provisions contained in this Agreement that by their sense and context are intended to survive the performance thereof by the parties hereto shall so survive the completion of performance and termination of this Agreement, including, without limitation, provisions for indemnification and the making of any and all payments due hereunder.
17.4 Failure of either Party to insist on performance of any term or condition of this Agreement or to exercise any right or privilege hereunder shall not be construed as a continuing or future waiver of such term, condition, right or privilege.
17.5 The relationship between the Parties shall be that of independent contractors, and nothing herein contained shall be deemed to constitute a partnership or joint venture between them or a merger of their assets or their liabilities or undertakings. Neither Party shall have the right to bind the other party, except as expressly provided for herein.
17.6 This Agreement shall be governed by the laws of the state of Delaware, United States without reference to its principles of conflict of laws.
17.7 This Agreement may be executed in multiple counterparts, each of which shall be deemed an original.
17.8 This Agreement and its Schedules represent the entire understanding between the Parties in relation to the matters herein and supersedes all previous agreements whether oral or written made between the Parties in relation to the subject matter hereof. This Agreement may only be modified in writing, signed by authorized representatives of both Parties.
17.9 Each party represents and warrants to the other that the execution and delivery of this Agreement and its Schedules and the performance of such party's obligations hereunder have been duly authorized, and that this Agreement is a valid and legal agreement binding on such party and enforceable in accordance with its terms.
17.10 Celitech reserves the right to update these terms from time to time and so you should review this policy periodically. Your continued use of any Services constitutes your acceptance of any such changes. Last Updated March 26, 2023.
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