GENERAL TERMS AND CONDITIONS
These General Terms and Conditions are applicable to products purchased by the customer and supplied by the Company. Each product, when agreed and executed by the Company, shall incorporate and shall be subject to these General Terms and Conditions.
NOW IT IS HEREBY AGREED as follows:
1.1 Definitions
In this Agreement the following terms shall have the following meanings unless the context requires otherwise:
“Acceptable Use Policy” or “AUP” means the Company’s Acceptable Use Policy exhibited in Schedule 1 of this Agreement as amended from time to time, which forms part of this Agreement;
“Applicable Data Protection Law” means the EU Data Protection Directive (95/46/EC) or other applicable law or regulation as they may be amended from time to time. Such as the General Data Protection Regulation (GDPR).
"Associated Company" means in relation to a party, any other company controlling, controlled by or under common control with that party. For the purposes of this definition, “control” means possession, direct or indirect, of the power to direct the management of a company;
“Artificial Inflation of Traffic” or “AIT” where the flow of Calls or SMS to a number exceeds the flow of Calls which would be expected from good faith usage or commercially acceptable practice relating to the use of such numbers or Services;
"Authorisation" means the entitlement to provide communications networks or Communications Services, or to make associated facilities available under the Regulations;
“Call” means the successful establishment of a connection between a Customer in the Territory and the Company’s equipment over the Network (and any other public telecommunications operator's system), enabling the conveyance of signals and messages between the Company’s, the Customer’s and/or the End User’s equipment;
"Cloudnumbering” means the Company;
“Company” means Norvell Limited, a company incorporated under the laws of the Isle of Man, whose company number is 134218C and whose registered office is at 6 Hill Street, Douglas, Isle of Man, IM1 2SG and who trades as Cloudnumbering;
“Credit Balance” means money paid by the customer in advance to pay for Service Fees;
"Customer" means the party named in the Customer’s account;
"Communications Services" any voice or SMS services (or, to the extent relevant from time to time, any other ECS) provided by the Company as part of the Services;
“ECS” means Electronic Communications Service (as defined In Directive (EU) 2018/1972 Of The European Parliament and of the Council of 11 December 2018 establishing the European Electronic Communications Code);
“GDPR” means Regulation (EU) 2016/679 (General Data Protection Regulation);
“Government Authority” means any person or body, with a statutory mandate, with lawful jurisdiction over the Customer, Company or the Services;
“End Users” means a person who receives or makes use of the Services provided to the Customer by the Company;
"Network" means the network, communications systems, infrastructure, Service Numbers and authorisation operated by the Company under the Regulations;
“Personal Data” means data defined as such in the GDPR or data treated as personal data under any other law or regulation applicable to the Communications Services;
"Public Telecommunications Operator" means a public telecommunications operator or Other Licensed Operator (OLO) within the territory;
"Regulations" means all laws, statutes, instruments, regulations or other forms of legal authority, whether regional, national or international which apply to or otherwise affect the Services of the Customer or the Company in connection with the provision of the Communications Services, whether in the Territory or outside the Territory;
"Service Commencement Date" means the date upon which the Services are ready for use by the Customer;
"Service Fees" means those fees payable by the Customer to the Company, calculated in real time (or as close to real time as is reasonably practicable in the circumstances) and deducted from the Customer’s Credit Balance;
“Service Level Agreement” means the service level agreement that is applicable to the provision of the Communications Services, as specified in the Order Form;
"Service Numbers" means the numbers allocated to the Customer by the Company to be used by the Customer to gain access to the Communications Services;
"Services" means the conveyance of Calls, SMS messages, and any other relevant ECS, (and ancillary services related to the same) over the Network;
“SES” means sexual entertainment services that shall be services of a sexual nature, or any services for which the associated promotional material indicates or implies that the service is of a sexual nature;
“SMS” means Short Message Service;
“Term” shall have the meaning set out in clause 4.1;
"Territory" means the/any territories specified in the Order Form.
1.2 Interpretation
(a) The headings are included for convenience only and shall not affect the interpretation or construction of this Agreement;
(b) A party or the parties is to a party or the parties (as the case may be) to this Agreement;
(c) A Clause or a Schedule is to a clause of a schedule to this Agreement (as the case may be);
(d) "This Agreement" includes the Schedules, which form part of this Agreement for all purposes;
(e) a statute or statutory provision includes any consolidation or re- enactment, modification or replacement of the same, any statute or statutory provision of which it is a consolidation, re-enactment, modification or replacement and any subordinate legislation in force under of the same from time to time;
(f) the masculine, feminine or neuter gender respectively includes the other genders any reference to the singular includes the plural (and vice versa);
(g) a person includes a firm, corporation and unincorporated associations, government, state or agency of state, any association or partnership or joint venture (whether or not having a separate legal personality);
(h) a document is to that document as varied, supplemented or replaced from time to time;
(i) any English statutory provision or English legal term for any action remedy, method of judicial proceeding, document, legal status, court official or other legal concept or thing shall in respect of any jurisdiction other than England be deemed to include what most nearly approximates in that jurisdiction to the England statutory provision or English legal term;
(j) writing shall include any modes of reproducing words in a legible or non-transitory form;
(k) time is to London time.
(l) "Sterling" or "£" or "pounds" is to the lawful currency of the United Kingdom.
(m) In this Agreement general words shall not be given a restrictive interpretation by reason of their being proceeded or followed by words indicating a particular class of acts, matters or things.
2.1 The Customer shall ensure that the Services are of a quality and content and are advertised, promoted, operated and presented in a manner so as not to bring or be likely to bring into disrepute (including but not limited to ensuring that the Services are of a non-SES nature and provided in accordance with the AUP) any of the following: the Company’s name or that of its Associated Companies or Communications Services provided over the Network.
2.2 The Customer shall comply at all times with the provisions of this agreement and the Acceptable Use Policy. Without prejudice to the generality of the foregoing if a Government Authority determines the Customer to be in breach of any Regulations, the Customer shall comply with any instructions of such Government Authority. The opinion of a Government Authority as to whether or not there has been a breach of any Regulations shall be deemed to be final and binding.
2.3 The Customer shall at all times comply with Regulations and with any additional obligations or restrictions contained in any Schedules to this agreement and agreed upon between parties. Without prejudice to the foregoing, the Customer shall operate the Services (including but not limited to use of any special number for access to the Communications Services) in a way that, does not include in the Services or any part thereof any call or material which violates the Acceptable Use Policy.
Without prejudice to any other right or remedy of the Company, the Customer shall indemnify and keep the Company indemnified against all liability, arising out of or in any way connected with any failure by the Customer so to do.
2.4 The Customer shall also upon the request of the Company at any time provide such information and take such steps as may be necessary in order to enable the Company to comply with all regulations, conditions and obligations from time to time imposed by the Regulations or otherwise by law upon the Company in relation to the Communications Services. The Company can request the customer to provide information in order to ensure the compliancy of the customer to the obligations under this agreement.
2.5 The Customer shall be responsible at its sole expense for all advertising and promotion of the Services.
The Customer shall notify the Company of any advertising campaigns or other promotions that are likely to result in sudden peaks in traffic in order that the parties can ascertain whether the anticipated number of Calls is likely affect the Communications Services or Services provided. The Customer acknowledges that a large number of Calls in a short period of time may temporarily cause the Communications Services to operate at a degraded or unprotected level.
For the avoidance of doubt, the Customer shall not use the names “NORVELL” or “NORVELL Limited”, any Company marks or logos, or any similar words or phrases in connection with the Services.
2.6 The Customer shall, in connection with the equipment it operates in order to provide the Services, ensure that it complies at all times with the relevant provisions of the Act, and any authorisation granted there under, or any equivalent statute in any other jurisdiction in which the Company operates, which governs the provision of Communications Services by the Company.
2.7 The Company shall take such steps as are reasonably necessary to ensure access to the Communications Services and in particular to ensure that sufficient lines, ports, bandwidth and other apparatus are available to meet all reasonably expected demand in line with the Service Level Agreement. The Company will always take into account the fact that access to the Communications Services may be achievable not only through use of the Network but also through the networks of other public telecommunications operators.
Furthermore the Company shall have the right in its discretion to suspend, bar or restrict access to the Communications Services if at any time the number of Calls or attempted Calls to or from the Customer causes or is liable to cause congestion or other disruption within any part of the Network.
2.8 In any case where the Customer is at their request allocated a special telephone number or identity applicable to the Communications Services, the Customer shall be responsible for all necessary investigations and inquiries as to the legitimacy of use of such number and the Company shall have no liability whatsoever with respect to the number chosen and its use by the Customer.
2.9 Each party shall in no circumstances assign or novate the Agreement to any Associated Company or any other third party, without the prior written consent of the other party which they shall not withhold on unreasonable grounds.
2.10 For the purpose of Clauses 2.1 the Company’s opinion as to what brings or is likely to bring into disrepute the Company’s name, that of its Affiliates, the Network or services provided over the Network shall be leading unless it cannot be sufficiently proven that the disruption is caused by the Customer or its affiliates.
3.1 All Service Fees, shall be paid for by the customer via the Cloudnumbering.com web portal in advance of use.
3.2 The Service Fees shall be calculated by the Company and will be deducted from the Customer’s Credit Balance. All Service Fees payable shall be calculated by reference to data recorded or logged by the Company and not be reference to any data recorded or logged by the Customer. The calculation by the Company shall be deemed to be conclusive as to the amount payable save in the case of manifest error. In the event that the credit balance becomes insufficient to cover further Service Fees, the account will no longer be able to make voice calls or send SMS messages until such time as the balance has been restored to a sufficient level
3.3 The Customer shall pay the Company for all Services it consumes, regardless of whether the usage of the Service was (i) authorised or not authorised, (ii) the result of a breach of the Customer’s systems by a third-party (iii) fraud, short-stopping or other malicious use (iv) runaway processes or human error (v) unintended (vi) any other event or act which caused the Services to be consumed on the Customer’s account.
3.4 Non-payment of any amount owed to the Customer by a third-party shall not relieve the Customer of its obligations to make payment to the Company.
3.5 The Customer must raise any dispute with respect to the accuracy of any deductions from the Customer’s Credit Balance by the Company within 30 days of the event in question, otherwise the Customer shall be deemed to have irrevocably accepted the accuracy of the usage deducted from the Customer’s Credit Balance;
3.6 Unless otherwise stated to the contrary in writing by an authorised representative of the Company, the Company may vary the Service Fees upon not less than seven (7) days written notice to the Customer.
4.1 This Agreement shall commence on the Service Commencement Date and shall, unless terminated either in accordance with the provisions below, continue until the expiry of not less than 1 month’s notice in writing served by either party at any time.
4.2 Notwithstanding anything to the contrary expressed or implied elsewhere in the Agreement, each party (without prejudice to its other rights) may terminate this Agreement under this Agreement forthwith in the event that:
(a) in the Company’s reasonable opinion, continuation of the provision of the Communications Services will cause adverse relations between the other party and any foreign administrations or any government or regulator in the world; or
(b) a voluntary arrangement is proposed or approved or an administration order is made, or a receiver or administrative receiver is appointed of any of the other party’s assets or undertaking or a winding-up resolution or petition is passed or presented (other than for the purpose of amalgamation or reconstruction) or if any circumstances arise which entitle the Court or a creditor to appoint a receiver, administrative receiver or administrator or to present a winding-up petition or make a winding up order or the equivalent in any jurisdiction;
(c) the Customer shall default in due performance or observance of its obligations under Clause 2 and fail to cure such default within the reasonable period specified in any notice of such default given by the Company; or
(d) the Company’s authorisation expires or is revoked, in which event the Company shall give to the Customer the maximum period of notice of termination practicable in the circumstances: or
(e) the Company is directed a Government Authority, to cease, to facilitate or allow the provision of the Communications Services; or
(f) the continuation of the Communications Services would give rise to or causes a breach of the Company’s Authorisation or of any order or direction of a Government Authority; or
(g) the Customer’s Credit Balance persists at a level insufficient to pay the Service Fees and is not remedied within five (5) calendar days’ of a reasonable written request by the Company;
(i) The Company reasonably suspects fraud, deception, Artificial Inflation of Traffic or breach of a Regulation or the Company’s Acceptable Use Policy by the Customer or any of its’ End Users; or
(j) Not to do so would or might in the Company’s sole opinion put the Company in breach of any law or Regulation or order or direction of a Government Authority; or
(k Not to do so would, or might in the Company’s sole opinion, bring the Company, or any of its agents or suppliers, into disrepute.
4.3 Without prejudice to its rights of termination at any time under Clause 4.2 the Company shall have the right by notice in writing to the Customer to require immediate suspension of the Services or a particular route of access to the Services and to suspend operation of this Agreement and performance and observance of its obligations to the Customer hereunder in the event of either:
(a) The issue of a formal recommendation to that effect by a Government Authority; or
(b) Occurrence of any of the matters specified in Clause 4.2 until the Company shall give further notice of cessation of such suspension or give notice of termination under Clause 4.2. During the period of such suspension the Company shall also have the right to suspend access to the Communications Services and/or to allocate a telephone number or numbers to the Customer which is different from that previously used for calls by the Customer or to the Customer; or
(c) Any actions of the Company are, in the opinion of the Company contrary to public interest or obscene or offensive in any way, according to local laws and regulations of the Territory or in the originating country, or
(d) If the Company receives any complaint against the Services or Communications Services from a telecommunications administration through which traffic relating the Services passes; or
(e) The Company has reasonable suspicion to suspect that the Services or Communications Services are being used in violation of the Acceptable Use Policy; or
(f) The Customer shall default in due performance or observance of its obligations under Clause 3 and fail to cure such default within the period specified in any notice of such default given by the Company; or
(g) Any activity relating to this Agreement creates a position where The Company contracts or services with third parties (including Partner Networks) are, in Company’s reasonable opinion, in danger of suspension then the Customer will at NORVELL’s instruction, suspend such parts of or all services or activities. In addition, Company shall have the right to immediately suspend its services to the Customer under this Agreement
4.4 The termination or suspension of this Agreement is provided for in this Clause 4 shall not prejudice any right of action or other remedy of each party against the other party in respect of any breach or any liability hereunder.
4.5 In the event that a suspension timescale with the Customer cannot be agreed; Company will reconnect the Services to the Customer only when in Company’s reasonable opinion the situation has been rectified.
Each party hereto undertakes to the other that it shall keep, and shall procure that its directors and employees and agents shall keep secret and confidential and shall not use or disclose to any other person any data or material of a technical or business nature relating in any manner to the business, products or services of the other party which the first party may receive or obtain in connection with or incidental to performance of this Agreement.
PROVIDED THAT
The first party shall not be prevented from using any general knowledge, experience and skills not treated by the other party as confidential or which do not properly belong to the other party and which the first party may have acquired or developed at any time during this Agreement;
The first party shall not be prevented from using the Communications Services or material referred to above to the extent such data or material comes into the public domain otherwise than through the default or negligence of the first party; and
Each party shall have the right to communicate any information concerning the other party to any Government Authority, where such data or material is required by law to be disclosed.
Each party, further agrees not to disclose the existence or the contents of this Agreement without first obtaining the consent of the other party.
However, in the event that any contracted third party on the Customer’s standing seeks reassurance, the Customer may indicate that Company is the provider.
Neither party shall be held in breach of its obligations hereunder nor liable to the other for any loss or damage which may be suffered by the other party due to any cause beyond its reasonable control including without limitation any act of God, failure, interruption or shortage of power supplies, flood, drought, lightning or fire, strike, lock-out, trade dispute or labour disturbance, act or omission of Government, highways authorities, other telecommunications operator or other competent authority, war, military operations or riot.
7.1 Assignment etc.
7.1.1 The Company shall have the right to assign, transfer, sub-contract or otherwise delegate all or any of its rights and obligations hereunder to any Associated Company upon consent of the Customer.
7.1.2 The Customer shall not assign, transfer, sub-contract or otherwise deal with or permits any other person to exercise or enjoy all or any of its rights and obligations under this Agreement without consent of the company.
7.2 Notices
(a) Any notice, invoice or other document which may be given under this Agreement must be in writing and may be served by personal delivery or by sending the notice by registered post, telex or facsimile transmission or electronic mail to the relevant party’s Registered Office or any other address in notified to the other party in writing of an address to which notices, invoices and other documents may be sent.
(b) The Company’s address for the service of any notice by the Customer under this Agreement shall be such address as is shown on the last invoice rendered to the Customer or such address as the Company shall notify the Customer in writing for that purpose.
(c) Any such communication shall be deemed to have been made to the other party on the day on which such communication has been received in due course of registered post, telex or facsimile transmission. Any communication by electronic mail shall be deemed to have been made on the day on which the communication is first stored in the other party's electronic mailbox.
7.3 Data Protection
The Parties acknowledge that in providing Service, the parties may process Personal Data, including, without limit, transferring it outside the European Economic Area and/or disclosing it to third parties. The parties will have in place adequate technical and organizational security measures so that the confidentiality of this processing complies with the GDPR, and the other party will:
(i) Comply with, and its acts or omissions will not cause the Company to be in breach of, the GDPR;
(ii) Obtain adequate consents from its customers and employees, including for transfers of Personal Data; and
(iii) Be responsible for the instructions it may give to the other party regarding the processing of Personal Data. Each party will act on those instructions as reasonably necessary for the provision of the Communications Services.
7.4 Third party Rights
A person who is not a party to this Agreement has no rights under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of this Agreement but this does not affect any right or remedy of a third party that exists or is available apart from that Act.
7.5 No Waiver
Failure by either party to exercise or enforce any right conferred by this Agreement shall not be deemed to be a waiver of any such right nor operate so as to bar the exercise or enforcement thereof or of any other right on any later occasion.
7.6 Entire Agreement and Variation
(a) Unless otherwise stated to the contrary in any Order Form, in the event and to the extent only of any conflict or inconsistency between;
(i) Any provision in the General Terms and Conditions and any provision in the Service Level Agreements, the provision in the General Terms and Conditions shall prevail;
(ii) Any provision in an Order Form and any provision in the General Terms and Conditions and/or the Service Level Agreements, the provision in the Order Form shall prevail.
(b) Each Order Form agreed and executed by the parties shall constitute an individual contract for the supply of the Communications Services specified in that Order Form and shall be subject to these General Terms and Conditions and the applicable Service Level Agreements, as specified in the Order Form.
(c) All variations to the Agreement shall be in writing. The parties agree that variations can be agreed between the parties by electronic mail provided that the electronic mails originate from an electronic mail address owned by the other party.
(d) This Agreement shall prevail over any inconsistent terms or conditions referred to in the Customer’s application or in correspondence or elsewhere and any conditions or stipulations to the contrary are hereby excluded and extinguished.
(e) The Company may vary these General Terms and Conditions unilaterally:
(i) upon notice to the Company to give effect to any relevant decision by a Government Authority. In doing so, any such variation shall be limited to the minimum required to give effect to such a decision; or
(ii) upon one month’s written notice to the Customer. The Customer may terminate this Agreement if the variation to these General Terms and Conditions pursuant to this clause 7.6(e)(ii) is detrimental to the Customer upon written notice to the Company, to come into effect the day before such variation comes into force. If the Customer does not provide notice to terminate pursuant to this clause 7.6(e)(ii) prior to the variation coming into force, it shall be deemed to have irrevocably accepted the variation.
7.7 No Partnership
Nothing in this Agreement shall constitute or be deemed to constitute a partnership or any other profit sharing relationship between the parties.
7.8 Severability
If at any time any provision of this Agreement is or becomes illegal, invalid or unenforceable in any respect under the law of any jurisdiction that shall not affect or impair:
(i) the legality, validity or enforceability in that jurisdiction of any other provision of this Agreement; or
(ii) the legality, validity or enforceability under the law of any other jurisdiction of that or any other provision of this Agreement.
(iii) Parties shall together make a new agreement or clause which is not considered illegal, invalid or unenforceable which closets approaches the meaning and intentions of parties as the original Agreement of clause.
howsoever caused and whether or not foreseeable.
7.10 Governing Law
This Agreement shall be governed by and construed and interpreted in accordance with the law of England and Wales, and the parties hereby submit to the exclusive jurisdiction of the courts of England and Wales.
CLOUDNUMBERING
SCHEDULE 1: ACCEPTABLE USE POLICY
1 Definitions and Interpretation
1.1 Capitalised expressions shall have the meanings given in the General Terms and Conditions.
1.2 The following additional definitions shall apply in this Schedule 1.
1.3 Virus: any thing or device (including any software, code, file or programme) which may: prevent, impair or otherwise adversely affect the operation of any computer software, hardware or network, any telecommunications service, equipment or network or any other service or device; prevent, impair or otherwise adversely affect access to or the operation of any programme or data, including the reliability of any programme or data (whether by re-arranging, altering or erasing the programme or data in whole or part or otherwise); or adversely affect the user experience, including worms, Trojan horses, viruses, harmful or malicious code, and other similar things or devices.
2 Acceptable Use Policy
2.1 The Customer shall not, and shall procure that its customers do not use the Services and/or Network to store, distribute or transmit any Viruses, or any material that:
(a) Is unlawful, harmful, threatening, defamatory, obscene, infringing, harassing or racially or ethnically offensive;
(b) In any way that is unlawful or fraudulent, or has any unlawful or fraudulent purposes or effect, or which facilitates illegal activity;
(c) Depicts sexually explicit images or promotes unlawful violence;
(d) Is discriminatory based on race, gender, colour, religious belief, sexual orientation, disability, or any other illegal activity;
(e) Causes damage or injury to any person or property;
(f) Is in breach of any applicable laws or regulations; or
(g) Infringes any Intellectual Property right or other proprietary right or right of privacy of a third party.
(h) Facilitates, originates nor terminates Artificially Inflated Traffic.
2.2 The Customer shall not use the Communications Services to:
(a) Transmit or procure the sending of, any unsolicited or unauthorised advertising or promotional material or any other form of similar solicitation (spam); or
(b) Intercept or monitor data or messages while they are being transmitted over the Network.
2.3 The Customer shall not and shall procure that its customers shall not use the Services or the Communications Services to access any computer, system, network, or data without authorisation or in a manner which exceeds authorisation including, any attempt to:
(a) Retrieve, alter, or destroy data;
(b) Probe, scan or test the vulnerability of a system or network; or
(c) Breach or defeat system or network security, authentication, authorisation, confidentiality, intrusion detection, monitoring, or other security measures.
2.4 The Customer shall not, and shall procure that its customers shall not, use the Services to:
(a) Impersonate any party or entity by adding, removing, or altering header information of network, email, or other messages transmitted over the Network;
(b) Transmit over the Network messages that have been electronically signed using a fraudulently obtained public key certificate or with a forged electronic signature; or
(c) Use the Network or any of the Services to commit any other form of impersonation or forgery.
2.5 The Customer shall not, and shall procure that its customers shall not, knowingly interfere with or disrupt the business operations, service, or function of the Company, the Network, or any computer, host, network, or telecommunications device connected to or via the Network.
2.6 The Customer shall not, and shall procure that its customers shall not, knowingly tamper with or attempt to gain unauthorised access to systems, network or other device of the Company.
2.7 The Customer shall promptly report to the Company any event, condition, or activity indicating a possible or actual:
(a) Breach of this Acceptable Use Policy;
(b) Breach or compromise of the security of the Network and/or the Services, including any event, condition, or activity occurring within any other telecommunications or computer network or systems that could affect the security of the Network and/or the Services.
2.8 The Customer shall have the following obligations with regard to AIT:
(a) shall not knowingly engage in, assist or allow others to engage in AIT;
(b) shall use reasonable endeavours, including the use of reasonably appropriate measures, to detect, identify, notify and prevent AIT. Reasonably appropriate measures may include:
iii. Comprehensive contractual terms with customers. Such terms and conditions to include obligations equivalent to these for the detection, identification, notification and prevention of AIT.
(c) when undertaking a technical development in relation to telecommunication services, shall reasonably enhance the facilities for the prevention and detection of AIT;
(d) agree and understand that the reasonable endeavours that can be carried out by the Customer to detect, identify, notify and prevent AIT are necessarily limited;
(e) undertake to perform their obligations under this Clause in good faith;
(f) shall, on suspecting AIT, notify the Company and supply details of the suspected AIT activity.
By taking, or continuing to take, services from the Company, the Customer is deemed to have agreed to these terms and conditions.
