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Podsystem LTD Agreement of Terms & Conditions of Sale for Charities April 2015

Acceptance of Terms & Conditions and Order

  1. By providing a fax, post, email or verbal order for SIM cards, data, SMS, CSD and/or voice services (or other mobile network services) or billing services (collectively or singularly referred to as Product) to Podsystem Ltd, the Charity acknowledges that he has been informed of and agrees to these Terms & Conditions and any other verbal, written or implied pre-contractual relations will be superseded by these Terms & Conditions.
  2. Only on acceptance of order, or by delivery of products (whichever is the former) by Podsystem Ltd, Podsystem Ltd agrees to be bound by these Terms & Conditions.
  3. The Charity explicitly acknowledges that their Purchase Conditions will not apply and that these Terms & Conditions constitute the entire agreement between Podsystem Ltd and the Charity. Furthermore, the Charity acknowledges that in entering into this agreement it has not relied on, and shall have no right or remedy in respect of, any statement, representation, assurance or warranty (whether made negligently or innocently) other than as expressly set out in this agreement.
  4. Podsystem Ltd reserves the right, at its sole discretion, not to supply any Charity order.

Delivery

  1. Podsystem Ltd shall bear no liability, consequential or otherwise for delay in delivering any Product supplied to the Charity.

Prices & Payments (if applicable, for example for large numbers of SIMs)

  1. Where Podsystem Ltd provides SIMs to charities, the cost of the SIMs will be free of charge and the services provided at cost. However, where applicable (for example with a large number of SIMs), the cost of SIM cards and services will be those agreed between the Charity and Podsystem. If the parties have agreed prices at, or below, cost and unless indicated otherwise, prices are exclusive of banking charges, VAT and other applicable taxes.
  2. Unless otherwise agreed in writing and where payments are applicable, payments will be made by the Charity:
  1. For physical SIM cards (including commissioning costs) – in advance of delivery
  2. For ‘bundled charges’ including monthly line rental on SIM cards and billing services billed at the beginning of the month, on a 30 day payment period.
  3. For SIM traffic usage – billed in arrears with a 30 day payment period. If additional charges from the networks are received for a period that has already been billed, the SIM usage report will be re-issued and the Charity invoiced the difference.
  1. If applicable, the Charity agrees to pay all charges for Products provided to the Charity including, but not limited to, the payment of all charges for a SIM card until the SIM card has been terminated with 30 days’ notice, regardless of whether charges were incurred by the Charity or a third party or as a result of misuse or fraudulent activity.
  2. If applicable, where the Charity disputes any item in an invoice within 30 days, and the invoice or part thereof is subsequently found to be incorrect then Podsystem Ltd will credit the Charity within 10 business days. Disputed invoices more than 30 days old will not be accepted. The Charity shall pay all invoices in full (including disputed amounts) in accordance with the terms of these Terms & Conditions and in good faith co-operate with Podsystem Ltd to resolve the dispute.
  3. If applicable, all payments must be made directly to a designated Podsystem Ltd bank via online bank transfer, fast payment, BACS, CHAPS or international bank transfer.
  4. If any payments are overdue, Podsystem Ltd reserves the right to employ a credit recovery agency to recover monies due. Podsystem Ltd is not liable for any detrimental effect (financial or otherwise) if action by the credit recovery agency affects the Customer’s credit rating and/or financial position. Furthermore, the costs, including any legal costs and court fees, incurred in the collection of any overdue payments will be paid by the Customer.
  5. If any SIMs have incurred costs that exceed the expected level of use, Podsystem reserves the right to invoice for these charges separately and the customer must pay these charges in full within 7 days of the date of the invoice.
  6. For any applicable payments that are overdue more than 14 calendar days, Podsystem Ltd reserves the right without notice to terminate ALL Products on the Customer’s account and charge a re-connection charge of £30 per SIM for reconnection and other administration charges that may be incurred.
  7. In the event of a significant increase in charges or minimum charges by a supplier or mobile network on Products provided by Podsystem Ltd, Podsystem Ltd reserves the right, with 30 days’ notice, to change its prices for services for that Product. In this eventuality the Customer has a right of termination as set out in clause 31.

Warranty & Liability

  1. In no event shall Podsystem Ltd be liable to the Charity for any kind of indirect damage, such as but not limited to any injury, damage, loss of use, loss of profit or claims of any third party based upon a claim for breach of warranty or claim of liability.
  2. Podsystem Ltd’s liability under these Terms & Conditions or in connection with its performance is expressly limited to the express provisions in these Terms & Conditions and the maximum sum of any and all claims will be the limited to the cost of Products paid by the Charity in the preceding year or £10,000 whichever is the lower. Podsystem Ltd makes no express or implied warranties, representations or endorsements regarding any merchandise, information, products or services provided in connection with these Terms & Conditions. Except for gross negligence and intent, Podsystem Ltd shall not be liable to the Charity and/or its Customers or beneficiaries and users for any direct or indirect loss or damage (including economic losses or any loss or profit) arising out of or in connection with the performance of its obligations under this agreement. Under no circumstances shall Podsystem Ltd be liable for any indirect or consequential losses.
  3. Podsystem Ltd does not guarantee the fault free working of the services and especially the fault free working of mobile networks. Podsystem Ltd is not liable for any service or proof of service, which is carried over Podsystem Ltd’s or any other mobile network. Podsystem Ltd is also not liable for operators ceasing or terminating mobile or other services. Under no circumstances shall Podsystem Ltd be liable for any direct, indirect or consequential damages, including but not limited to damages that result from the Users’ use of or inability to access any part of the Product or the Product’s functionality, or User’s reliance on or use of information and services provided on or through the Product or damages that result from mistakes, omissions, interruptions, loss, theft, or deletion of files, packet data or other information, errors, viruses, defects, delays in operation or transmission, or any failure of performance.
  4. Except as expressly stated elsewhere in the Agreement, all representations, warranties, conditions and other terms, whether express or implied (by common law, statute, collaterally or otherwise) are hereby excluded. Furthermore, Podsystem Ltd make no warranty as to any fitfulness for any particular purpose.
  5. The Charity shall indemnify Podsystem Ltd and hold Podsystem Ltd harmless from and against all losses, damages, expenses (including, without limitation, legal expenses), costs and liabilities for personal injury, loss of life or personal property damage arising out of or in connection with (a) any breach of these Terms and Conditions by Charity; (b) the Charity’s negligent act or omission (c) any claims, demands, actions or proceedings made by any person or entity (including, without limitation, any Regulator) arising out of or in connection with the provision or use of the Product by the Charity (unless the same arises as a result of any breach of these Terms & Conditions by Podsystem Ltd or Podsystem Ltd’s negligent act or omission).
  6. The provisions of Clauses 13, 14, 15, 16, 17 and 18 shall survive the termination or expiry of these Terms & Conditions.

Charity Obligations

  1. The Charity is responsible for ensuring that any hardware equipment, or software application running on that equipment, that uses a Product provided by Podsystem Ltd complies with any and all requirements of all GSM networks and will not cause any damage or interruption to any mobile phone network. The Charity accepts all liabilities for damage or interruption to any mobile phone network caused as a direct result of the hardware equipment or software application running on that equipment. If the Charity is unsure whether the equipment or software being used may cause any damage to a mobile phone network, the Charity may request Podsystem Ltd to gain approval prior to use. Whether approval is sought is at the sole discretion of Podsystem Ltd.
  2. The Charity shall ensure that neither the Content nor the Data or its supply to or use by any End-user pursuant to these Terms & Conditions shall infringe the rights of any third parties or any laws or Regulations (including, without limitation, the Data Protection Directive (95/46/EC), the Directive on Privacy and Electronic Communications (2002/58/EC), the Electronic Commerce Directive (00/31/EC) and the Distance Selling Directive (97/7/EC), and any national implementations thereof, in any country where any message is originated, delivered or in respect of which any of service provided by the Product are performed.
  3. The Charity agrees to comply with reasonable instructions as Podsystem Ltd may from time to time notify to the Charity in regards to using the Product. However, even without such instructions, the Charity will not breach any laws, standards or codes, including but not limited to SIM Boxing, or infringe a third party’s rights, or breach any content requirements or codes stipulated by any relevant authority. Furthermore, the Charity shall refrain, and prevent others, from using the Product for any purpose other than that intended by the relevant telecommunications operator, in any way whatsoever, including ‘’annoyance’’, “spamming’’ or any other form of harassment, creating, or having third parties create, connections with buy lines (090x numbers) on a large scale or committing criminal offences or use the Product in a way which interferes with other users or harasses or restricts any other user from using or enjoying the Hosting MNO Network or the internet. Charity shall be liable for any damage and costs arising as a result of unlawful use of the Product, regardless as to whether the Charity was aware of such use or not.
  4. The Hosting MNO, as a supplier of Podsystem, has an independent right to claim for damages suffered as a result of the Charity’s failure to comply with clause 21. Therefore the Hosting MNO is allowed to directly claim for damages from the Charity.
  5. Any SIM card we supply to you remains the property of Podsystem but it is your responsibility to keep it safe. We reserve the right to recall any SIM card from you at any time to enhance or maintain the quality of the Services.
  6. To the extent that Podsystem makes the Customer aware or the Customer becomes aware of any company that provides Products to Podsystem then the Customer hereby agrees not to make contact with such company (for example a national mobile network) without Podsystem’s consent and accordingly there will be a non-circumvention obligation in that regard. It is understood and agreed by the Customer that money damages would not be a sufficient remedy for any breach of this clause and that the Podsystem shall be entitled to specific performance and injunctive or other equitable relief as a remedy for any such breach and the Customer further agrees to waive any requirement for the security or posting of any bond in connection with such remedy. Such remedy shall not be deemed to be the exclusive remedy for the breach of this clause but shall be in addition to all other remedies available at law or equity to the Podsystem. The Customer will also ensure that its customers or users will abide with this clause.
  7. International Security. Charity represents, warrants and covenants that Charity: (a) is compliant in all respects relevant to this Agreement with all applicable sanction or embargo laws and regulations in effect from time to time, including trade and economic sanctions maintained by the United States Treasury Department’s Office of Foreign Assets Control (“OFAC”), and any other enabling legislation or government order relating thereto (collectively “Sanction Laws”); (b) is not listed on, or owned or controlled by an entity or person on, the U.S. Department of Treasury list of Specially Designated Nationals or any similar list in place in any jurisdiction where Charity is conducting business; (c) is not located in or organized under the laws of a country subject to U.S. or E.U. trade embargo (collectively, “Restricted Persons”); (d) will take all such steps as prudent to ensure that it will not provide Product to Restricted Persons; and (e) will not use the Product, or allow them to be used, for any purposes prohibited by applicable Sanction Laws, including nuclear, chemical, or biological weapons proliferation, or development of missile technology.  Notwithstanding any other provision in this Agreement, Podsystem Ltd reserves the right to terminate this Agreement immediately upon written notice to the Charity if Podsystem Ltd reasonably determines that Charity is not in compliance with this Paragraph 27 or that its actions are causing Podsystem Ltd to be exposed to prosecution or liability for violation of Sanction Laws.
  8. In order to preserve the integrity of the network, Podsystem reserves the right to request the Customer to change the firmware of their device so that it does not stop and start authentication requests and/or data session requests (including retries) more than on average 30 times per hour over any consecutive 12 hour period.  If requested, the firmware change needs to be completed within 5 working days otherwise Podsystem has the right to immediately without notice cease the use of that SIM card and Podsystem will not be responsible for any consequential or other costs as a result of the SIM’s cessation.

Force Majeure

  1. Either party’s performance of any part of these Terms & Conditions, other than payment obligations, shall be excused to the extent that it is hindered, delayed or otherwise made impractical by:
    • the acts or omissions of the other party or any Network Operator;
    • flood, fire, earthquake, strike or riot;
    • or any other cause (whether similar or dissimilar to those listed) beyond the reasonable control of that party (collectively referred to as “force majeure conditions” below).

If a default due to an Event of Force Majeure shall continue for more than three months then either party may terminate its contract with the other without any liability to the other.

Service Suspension & Termination

  1. Podsystem Ltd may at any time immediately suspend all or part of the Product it provides until further notice without incurring any liability:
    • if it is obliged to comply with an order, instruction or request of Government, or emergency services organization, or other competent administrative authority; or
    • it needs to carry out work related to exceptional upgrading or maintenance of its facilities where those facilities must cease operation; or
    • in order to prevent damage or degradation of Podsystem Ltd’s contracting party’s network integrity which may be caused by whichever reason; or
    • for behavior that in Podsystem Ltd’s reasonable discretion may be deemed to be illegal; or
    • in order to protect Podsystem Ltd, at its sole discretion, from legal liability which relates to a breach of obligation and/or warranties by Charity; or
    • if any SIMs have undertaken a level of usage either in the amount and number of transmissions or costs, that exceeds the expected level of use; or
    • in case of notifications or signs of fraud or abuse of service; or
    • the services of one or more of the Network Operators upon which the provision of the Product hereunder is dependent suspends its provision of those services to Podsystem Ltd under the terms of its or their relevant agreement(s) with Podsystem Ltd; or
    • if payments have not been made in accordance with these Terms & Conditions (if applicable).
    • with 30 days’ notice at its own discretion without explanation.
  2. Agreement of these Terms & Conditions may be terminated prior to expiration of the Term by notice in writing as follows:
    • by either party in the event the other has failed to perform any material obligation required to be performed under these Terms & Conditions and such failure is not corrected with thirty (30) days from receipt of written notice advising of such failure from the other party.
    • by Podsystem Ltd by immediate notice in the event that one or more of the Network Operators upon which the provision of Services hereunder is dependent terminates its provision of those services to Podsystem Ltd under the terms of its or their relevant agreement(s) with Podsystem Ltd.
    • by Podsystem Ltd by immediate notice in the event that the Charity is in material breach of its obligations.
    • by either party in the event that the other party enters into liquidation (other than for the purposes of a bona fide reconstruction or amalgamation), enters into a voluntary arrangement with its creditors, has a receiver, administrative receiver or administrator of all or any of its undertakings or assets appointed, or is deemed by the relevant statutory provisions under the applicable law to be unable to pay its debts or (if an individual) presents or has presented against him a bankruptcy petition or (if a non UK national or corporation) shall suffer anything analogous to these matters to occur to him or it.

Disclosure

  1. The Charity agrees to:
    • the disclosure to any telecommunications company, debt collection agency, credit reference agency, credit or fraud monitoring scheme, security agency or credit provider of any information relating to the Charity’s performance in meeting its obligations under these Terms & Conditions
    • any disclosure as may be permitted by Podsystem Ltd’s Data Protection Act Registration and Data Protection Act 1998.
    • any disclosure required as a result of an order of any court of competent jurisdiction or by statutory authority.

Waiver & Severability

  1. No waiver by either party of any breach of these Terms & Conditions by the other party shall be considered as a waiver of any subsequent breach of the same or any other provision.
  2. If any provision of these Terms & Conditions is held by any competent authority to be invalid or unenforceable in whole or in part the validity of the other provisions of these Terms & Conditions and the remainder of the provision in questions shall not be affected thereby.

Governing Law & Term

  1. This Agreement shall continue in force until the earlier of
    • the termination of this agreement as set out in clause 31 or
    • until the SIM card has been terminated with 30 days’ notice after the contract period has completed and all outstanding charges have been paid
  2. These Terms & Conditions shall be governed by and construed and interpreted in accordance with the laws of England and Wales.