OV Terms & Conditions
Ref: 2607
1. Definitions and interpretation
1.1 Unless the context otherwise requires, the definitions and principles on interpretation set out in Annex 1 shall apply to this MSA.
2. Commencement and Term
2.1 This MSA shall commence on the Commencement Date and shall, subject to the terms of this MSA, continue in force for the Initial Term and afterward unless and until terminated by either party on 3 months’ written notice.
3. Services
3.1 OV shall provide the Services to Customer from the Service Commencement Date until the end of the Term in accordance with this MSA.
3.2 In providing the Services OV shall:
(a) use reasonable endeavours to meet any timetable agreed with Customer;
(b) use reasonable skill and care of a competent communications service provider; and
(c) comply with Applicable Laws.
3.3 OV shall have the right to discontinue or modify any of the Services:
(a) on one months’ written notice, where such discontinuance or modification does not have a material effect on the Services; or
(b) on one months’ written notice where an underlying service that is itself made available to OV is discontinued or modified in such a manner that it is no longer reasonably possible for OV to make the Services available to the Customer without discontinuing or modifying any of the Services; or
(c) on six months’ written notice at any time.
3.4 The Customer shall comply with its support responsibilities as set out in Annex 4 (Support Services).
3.5 Notwithstanding any other provision in this MSA, OV’s sole obligation (and Customer’s exclusive remedy) in relation to the availability or quality of any element of the Services which is provided by a third-party electronic communications provider (including roaming services) is to use reasonable endeavours to enforce the terms of the agreement between OV or any OV Group Company (as applicable) with such third party for the benefit of Customer.
3.6 It is not possible for any communications provider to guarantee a fault free service and OV does not undertake to do so.
3.7 Customer acknowledges OV’s obligations to ensure the efficient use of MSISDN’s and agrees to ensure that where applicable MSISDN’s are allocated in an efficient manner to genuine Users who use the Services. If a MSISDN remains inactive (meaning that the MSISDN has not been used to initiate or receive a voice call or SMS on the OV Network) in the last 12 months (the “Inactive MSISDN”) then, OV reserve the right to recover such Inactive MSISDN.
4. Resale of Services
4.1 In relation to the sales, promotion or distribution activities carried out by or on behalf of the Customer, the Customer shall:
(a) comply with all Applicable Laws (including obtaining and maintaining all authorisations, permissions and approvals required to resell the Services);
(b) ensure that the Services are only sold to Users under written contracts which incorporate the Mandatory Terms;
(c) only represent itself as having a contractual relationship with OV on the basis of, and subject to the terms of, this MSA;
(d) not be involved in, or permit any Users to be involved in, Fraud or AIT;
(e) notify OV immediately on becoming aware of, or suspecting any, Fraud or AIT;
(f) in the event of an upgrade in the Services by OV, upgrade its systems used for connectivity to the Services so that:
(i) it maintains compatibility to the extent necessary to ensure that there is no adverse effect on the operation of the Services; and
(ii) billing can be achieved as envisaged by the MSA in the event of any upgrades or changes to the OV Network;
(g) comply with all reasonable technical and/or operational directions and policies issued by OV from time to time in connection with the Services (including any Fair Use Policy or security requirements relating to any access to OV’s systems);
(h) not do anything that is likely to (and shall take reasonable steps to ensure that Users do not do anything that is likely to) impair, interfere with or damage or cause harm or distress to any persons, the OV Network, any OV Partner Network or the operation of the Services;
(i) not use or permit the Services to be used for any illegal, immoral or unlawful purpose;
(j) comply with all support responsibilities as set out in Annex 4 of this MSA; and
(k) at its own cost: (i) obtain and maintain all licences, clearances and other consents (including any import licences) that are required for the supply by OV of any deliverables due under this MSA (including SIM Cards); and (ii) provide to OV all documents necessary under applicable laws and regulations for OV to export such deliverables (including SIM Cards) to Customer or, where local laws or regulations require OV to do so, provide all assistance requested by OV in obtaining them.
4.2 The Customer shall be solely responsible for:
(a) proposing and specifying to Users the services and Devices to be used in connection with their use of the Services; and
(b) communicating with the Users regarding their use of the Services.
5. Forecasts
5.1 On the reasonable request from OV the Customer shall prepare and submit to OV, within 30 days’, a forecast of the Customer’s known capacity requirements in relation to the use of the Services over the forthcoming six months.
5.2 The Customer shall use reasonable endeavours to:
(a) notify OV in advance if the traffic profile for any User Devices that are already deployed on the OV Network are set to materially change so that OV can assess any potential impact in advance of such change;
(b) notify OV in advance if any User is planning to deploy a large-scale software update so that OV can monitor any impact on the OV Network; and
(c) to co-operate and work reasonably with OV when OV gives technical guidance on the deployment on any of the matters referred to in Clause 6.
6. Devices
6.1 The Customer will exercise reasonable skill and care in connecting (or permitting the connection of) Devices to the OV Network or any OV Partner Network (including following IoT Best Practices) in order to minimise any risk of any damage to or harmful congestion on such networks. The Customer shall only connect (or permit the connection) of Devices to such networks which have been approved for connection to mobile networks by the applicable regulatory bodies.
6.2 If the Customer notifies OV that it desires OV’s guidance in relation to the connection of any Devices, the parties shall use reasonable endeavours to work together to evaluate any new Devices and to implement an agreed test plan in relation to them.
6.3 If the Customer connects (or permits the connection of) any Devices which have not been successfully tested by the parties pursuant to Clause 6.2 and, in OV’s reasonable opinion, the OV Network or an OV Partner Network is adversely affected, then OV shall be entitled to suspend the relevant Device(s) that are responsible for such adverse impact.
7. Charges
7.1 Calculation & Invoicing
(a) OV will calculate the charges in accordance with Schedule 1 or as otherwise specified in the MSA;
(b) OV will Invoice Customer in arrears for the charges at the end of each calendar month;
(c) Any Charges relating to a previous calendar month that have not been invoiced by OV may be raised in subsequent periods up to a maximum period of three calendar months after the month in which such Charges were incurred by the Customer;
(d) Each OV Invoice shall be considered validly delivered to Customer by OV if it is sent by email to the Customer invoice email address that is provided on the Parties Details section of the MSA or as updated by Customer in writing from time to time;
(e) OV may vary the Charges List from time to time by issuing a new version to Customer. OV will send such new Charges List by email to the Customer (including the effective date for the updated Charges List) not less than 30 days before the change is due to take effect;
(f) The Customer acknowledges and accepts that when the Charges List is updated to remove a OV Partner Network then that OV Partner Network will no longer be available to the Customer from the date specified in the Charges List.
7.2 Rate Plans
(a) On request from Customer OV will provision and associate an IMSI Profile with a specific Rate Plan (where available then, Customer will also be able to provision and associate an IMSI Profile with a specific Rate Plan). The date on which an IMSI Profile is provisioned and associated with a Rate Plan will become the Rate Plan IMSI Profile Provisioned For Use Date. For the avoidance of doubt it will not be possible to move IMSI Profiles between Rate Plans.
(b) Where Usage occurs on a Rate Plan outside the Rate Plan Countries specified on the Rate Plan Order Form then, that Usage will be charged in accordance with the then current Charges List.
(c) The Out of Allowance Charges specified on a Rate Plan Order Form apply until the Rate Plan Term or Rate Plan Initial Term per IMSI Profile has expired (whichever is the sooner) and thereafter, can be updated by OV to Customer in writing on 30 days’ notice.
(d) Where a IMSI Profile has not been associated with a Rate Plan by the Rate Plan IMSI Profile Effective Charging Date then it will be allocated to the Default Rate Plan included in the then current Rate Plan Order Form.
(e) Following the expiry of the Rate Plan Initial Term for each Rate Plan IMSI Profile, the applicable Rate Plan will continue to apply to the respective Rate Plan IMSI Profile until that IMSI Profile is terminated by either party on 30 days’ written notice to the other party. The Rate Plan IMSI Profile will then be removed from the Rate Plan at the end of the respective calendar month following the 30 days’ notice.
(f) A Rate Plan can be withdrawn by OV on 30 days’ written notice following the expiry of the Rate Plan Term with the Rate Plan terminating at the end of the respective calendar month following the 30 days’ notice.
7.3 The Customer shall pay the Charges (without any deduction or set-off) within 30 (thirty) days of the date of OV’s invoice. All payments shall be made to OV in the Agreed Currency and shall be made by wire transfer to the OV bank account details specified on the OV Invoice. For the avoidance of doubt OV do not accept payment by debit or credit card or any other method of payment. If the Customer is required by Applicable Law to withhold any sum from the payment of the Charges then the amount payable to OV shall be increased by the amount of such withholding requirement so that OV receives payment as if such withholding requirement does not apply.
7.4 The Charges are exclusive of VAT which shall, if applicable, be payable at the prevailing rate.
7.5 The Charges are exclusive of any customs, handling, import and/or export duties applicable to any deliverables due under this MSA (including SIM Cards) which the Customer shall promptly pay to the relevant authority and provide OV with evidence of such payment. If OV incurs any such liabilities, the Customer shall promptly reimburse OV for sums paid by it. OV shall not be liable (including by way of a refund of the Charges) for any non-delivery of any such deliverables (including SIM Cards) caused by a breach of the Customer of the foregoing or Clause 4.1(k).
7.6 OV shall be entitled to charge interest on any Charges not paid by the due date at the rate of two percent above the base rate of the Bank of England from time to time. Such interest shall be charged from the due date until the date of payment (before or after judgement) and calculated on a daily basis.
7.7 Without prejudice to the Customer’s payment obligations under Clause 7.3, billing queries and/or raising a dispute with respect to any invoice must be made in writing within 30 days of the date of the applicable invoice after which time the invoice will be deemed to be irrevocably accepted and Customer shall be prohibited from raising any dispute in relation to such invoice.
7.8 In the event that Customer challenges the accuracy of any invoice in accordance with Clause 7.7, or a dispute arises between the parties as to the accuracy of a sum due to either of them under this MSA:
(a) the Customer shall be entitled to withhold any disputed sum provided that:
(i) it provides OV written notice of the dispute (including a reasonably detailed description of the grounds of the dispute) by the payment due date; and
(ii) the amount in dispute represents greater than three percent (3%) of the total amount of the invoice (excluding VAT);
(b) on receipt of a valid invoice dispute OV shall provide the Customer with a definitive re-calculation of the relevant sum due to it under the terms of this MSA within fifteen (15) Business Days. The Customer shall have fifteen (15) Business Days to review such sum and calculation and to state whether it agrees with such calculation or if it does not so agree, to state in writing the matters which it does not accept as being an accurate calculation of the sum due to OV. If the Customer fails to respond to OV’s notification of its re-calculation within fifteen (15) Business Days then OV’s re-calculation shall be deemed final and binding on the parties;
(c) if the Customer notifies OV in writing in accordance with Clause 7.8(b)that it does not accept such re-calculation, the parties shall, within ten (10) Business Days following the date of the Customer’s notice of the dispute, meet and attempt to resolve any dispute or difference relating to the amount due; and
(d) If they are unable to resolve the matters in dispute within the period of ten (10) Business Days following the date of the Customer’s notice of the dispute, either party may refer it for settlement to a firm of independent chartered accountants agreed by the parties. If the parties have not agreed a firm within five (5) Business Days after the request to refer it a firm pursuant to this Clause, the firm will be selected by the president for the time being of the Institute of Chartered Accountants in England and Wales. 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.
7.9 OV shall be entitled, from time to time, either before or after the Service Commencement Date and on more than one occasion to:
(a) require the Customer:
(i) to provide a guarantee; or
(ii) deposit funds with OV (in such amount as OV, acting reasonably thinks fit) by way of security for the payment of any Charges payable or to become payable by the Customer and to apply such funds to settle any amount that may be due to OV from time to time; and/or
(b) to apply a fee cap upon the Customer’s use of the Services, so that if the Customer’s usage of the Services results in the Charges exceeding such fee cap, then OV reserves the right to suspend the Customer’s access to any and/or all of the Services, in whole or part.
8. Confidentiality
8.1 Neither party shall use or disclose any Confidential Information of the other which is disclosed or otherwise comes into its possession directly or indirectly as a result of this MSA except as strictly necessary to perform its obligations or exercise its rights under this MSA.
8.2 The obligations set out in Clause 8.1 shall not apply to Confidential Information which:
(a) the receiving party can prove was in its possession or in the public domain at the date it was received or obtained;
(b) the receiving party lawfully or properly obtains without obligation of confidentiality;
(c) comes into the public domain otherwise than through the default or negligence of the receiving party;
(d) was independently developed by the receiving party without reference to the Confidential Information of the other party;
(e) with the prior consent of the other party (such consent not to be unreasonably withheld or delayed) is disclosed to obtain or maintain any listing on any recognised stock exchange;
(f) is required to be disclosed to a court or a body having similar authority provided that the other party is given prompt notice and, at the other party’s request and expense, the receiving party uses reasonable endeavours to obtain a protective order and otherwise to protect the Confidential Information; or
(g) is required to be disclosed by either party or on its behalf to its auditors (whether internal or external), regulators and other third parties who have the right to require that it supply the relevant information.
9. Data Protection
9.1 Each party shall at all times comply with the provisions of the Data Protection Laws in its processing of Personal Data in connection with this MSA.
9.2 Where a party processes Personal Data as a Data Processor of the other party, the Data Processor shall:
(a) process that personal data only for the purposes of this MSA, taking account the reasonable written instructions of the other party;
(b) keep the personal data confidential;
(c) not transfer any personal data outside of the Isle of Man or the UK unless, in accordance with the Data Protection Laws, the Data Processor ensures that (i) the transfer is to a country approved as providing an adequate level of protection for Personal Data; or (ii) there are appropriate safeguards in place for the transfer of Personal Data; or (iii) binding corporate rules are in place; or (iv) one of the derogations for specific situations applies to the transfer;
(d) assist the other party (at the other party’s expense) in responding to any data subject access request and to ensure compliance with its obligations under the Data Protection Laws with respect to security, breach notifications, privacy impact assessments and consultations with supervisory authorities or regulators;
(e) notify the other party without undue delay on becoming aware of a personal data breach relating to this MSA;
(f) at the written request of other party, delete or return Personal Data (and any copies of the same) to the other party on termination of this MSA unless required by Applicable Law or for billing purposes to store the personal data;
(g) maintain complete and accurate records and information to demonstrate compliance with this Clause 9.2; and.
(h) ensure that it has in place appropriate technical or organisational measures to protect against unauthorised or unlawful processing of Personal Data and against accidental loss or destruction of, or damage to, personal data, appropriate to the harm that might result from the unauthorised or unlawful processing or accidental loss, destruction or damage and the nature of the data to be protected, having regard to the state of technological development and the cost of implementing any measures.
10. Intellectual Property Rights
10.1 Nothing in this MSA will operate to transfer, or grant any rights in relation to, any Intellectual Property Rights other than the limited licences expressly set out in this MSA.
10.2 To the extent that OV provides the Customer with any Service Materials, OV grants the Customer a non-exclusive, royalty free licence to use the Service Materials during the Term for the sole purpose of using and reselling the Services in accordance with this MSA.
11. IPR Indemnity
11.1 OV indemnifies the Customer against any liability or costs (including reasonable legal fees) arising from any third-party claim alleging that the Customer’s permitted use of the Services Materials provided by OV infringes any Intellectual Property Rights of any third party.
11.2 The indemnity set out in Clause 11.1 is conditional on the Customer:
(a) giving OV prompt written notice of the claim;
(b) providing OV and its professional advisers reasonable access to (and copies of) any relevant documents and personnel as required for the purposes of investigating the matter and enabling the indemnifying party to defend and/or settle such claim;
(c) allowing OV (at OV’s request) to take over control of the defence and/or settlement of such claim;
(d) giving such information and assistance (at OV’s expense) as OV may reasonably request to defend and/or settle such claim; and
(e) not making any offer, promise, compromise, settlement or communication adverse to the defence of the claim with the third-party claimant without the prior written consent of OV.
12. Corporate Authority Warranty
12.1 Each party hereby warrants that:
(a) it has all requisite corporate power and authority to enter into this MSA and to carry out its obligations herein; and
(b) it is entitled to enter into and perform its rights and obligations under this MSA without breaching any duty owed to any third party.
13. Limitation of Liability
13.1 Nothing in this MSA shall exclude or limit either party’s liability for:
(a) death or personal injury arising from its negligence;
(b) fraudulent misrepresentation or fraud;
(c) breach of Clauses 6 or 7; or
(d) any other liability which cannot be limited under applicable law.
13.2 Subject to Clause 13.1, neither party shall be liable to the other (whether for breach of contract, tort or otherwise) in connection with or under this MSA for any:
(a) loss of revenue;
(b) loss of profits;
(c) depletion of goodwill;
(d) loss of anticipated savings;
(e) loss of data; or
(f) any indirect or consequential losses,
howsoever caused and whether or not foreseeable.
13.3 Subject to Clause 13.1, in no event shall either party’s aggregate liability to the other party (whether for breach of contract, tort or otherwise) for events arising in each Year under or in connection with this MSA exceed the higher of:
(a) the sum of £500,000; and
(b) a sum equal to the value of the Charges payable in the prior Year.
13.4 Except as set out in this MSA, all representations, warranties, conditions, terms and undertakings, express or implied, whether by statute, common law, custom, trade usage, course of dealings or otherwise (including without limitation as to quality, performance or fitness or suitability for purpose) in respect of any services to be provided by a party under this MSA are hereby excluded to the fullest extent permitted by law.
14. Force Majeure
14.1 Neither party shall be liable for any delays or failures to perform any of its obligations under this MSA which are caused by a Force Majeure Event.
14.2 In the event that either party becomes aware of any such delays or failures it shall immediately notify the other party of the Force Majeure Event and its anticipated duration.
14.3 If such delay or failure continues for more than 60 days from the date of initial notification of the occurrence of the Force Majeure Event and would otherwise constitute a material breach of this MSA, either party shall be entitled to terminate this MSA or the relevant part of it so affected forthwith.
15. Suspension and Termination
15.1 If the Customer breaches Clause 4.1, OV shall have the right (without prejudice to any other right or remedy) to immediately suspend such parts of the Services directly related to the activity causing the problem. OV will provide Customer with notice of such suspension as soon as reasonably practicable and will re-commence the provision of any suspended Services when, in OV’s reasonable opinion, the situation has been rectified.
15.2 If the Customer does not pay any Charges on the due date (which have not been disputed in accordance with Clause 7.8), OV shall have the right on 7 days’ written notice to suspend provision of the Services until such time that the outstanding invoice(s) has been settled in full by the Customer.
15.3 Each party shall have the right to terminate this MSA with immediate effect by written notice on or at any time after the happening of any of the following events:
(a) the other party commits a material breach of this MSA and either such breach is incapable of remedy or, if capable of remedy, it is not remedied within 30 days after a written notice of the breach;
(b) if the other party passes a resolution for its winding-up or the making by a court of competent jurisdiction of an order for the winding-up or the dissolution of the other party (except for the purposes of a solvent amalgamation or reconstruction);
(c) the making of an administration order in relation to the other party or the appointment of a receiver or an administrative receiver over, or the taking possession or sale by a secured party of, any of its assets;
(d) the other party making an arrangement or composition with its creditors generally or making an application to a court of competent jurisdiction for protection from its creditors generally; or
(e) in accordance with Clause 14.3.
16. Consequences of Termination
16.1 Upon expiry or termination of this MSA for any reason, the Customer shall cease to:
(a) promote, market, advertise or resell the Service; and
(b) hold itself out as having any connection with OV.
16.2 The termination of this MSA for whatever cause shall not:
(a) prejudice or affect the rights of any party against the others in respect of any breach of this MSA or in respect of any monies payable by any one party to another in respect of any period prior to termination; or
(b) affect the provisions of Clauses 8, 11, 13, 16, 22 and 23 which shall remain in force.
17. Dispute Resolution
17.1 If a dispute arises out of or in connection with the MSA or the performance, validity or enforceability of it (the “Dispute”) then the parties shall follow the procedure set out in this Clause:
(a) either Party shall give to the other written notice of the Dispute, setting out its nature and full particulars (the “Dispute Notice”), together with relevant supporting documents. On service of the Dispute Notice, the business development director or equivalent of each Party shall attempt in good faith to resolve the Dispute;
(b) if the business development directors or equivalent of each Party are for any reason unable to resolve the Dispute within 14 days of service of the Dispute Notice, the Dispute shall be referred to the managing director or equivalent of each Party who shall attempt in good faith to resolve it; and
(c) if the managing directors or equivalent are for any reason unable to resolve the Dispute within 14 days of it being referred to them, either party shall be at liberty to have recourse to its full legal rights and remedies.
17.2 Nothing contained in this Clause 17 shall restrict, at any time, either party’s freedom to undertake legal proceedings to the extent necessary to preserve any legal right or remedy or to protect any Intellectual Property Right.
18. Assignment
18.1 Subject to Clause 18.2, this MSA shall be binding upon and endure for the benefit of the successors in title of the parties but neither party shall assign or otherwise transfer or alienate any or all of its rights or obligations under this MSA without the prior written consent of the other.
18.2 OV shall be permitted to assign its rights under this MSA to any OV Group Company. OV shall provide the Customer with prompt notice of any such assignment.
18.3 In the event of any change of Control of the Customer:
(a) The Customer will notify OV in writing of the change of Control within fifteen (15) days of when the change of Control becomes unconditional and completes; and
(b) OV shall have the right to terminate the MSA on not less than three (3) months’ notice in writing, such notice of termination being given not later than three (3) months after:
(i) the date when the change of Control becomes unconditional; and
(ii) the date OV received notice from the Customer of such change of Control
(whichever is the later).
19. Entire MSA
19.1 This MSA together with any documents referred to in this MSA sets out the entire agreement and understanding between the parties relating to the subject matter hereof and supersedes any prior agreement relating thereto.
19.2 Each party acknowledges that it has entered into this MSA in reliance only upon the representations, warranties and promises specifically contained or incorporated in this MSA and, save as expressly set out in this MSA, each party shall have no liability in respect of nor shall either party be entitled to rely on any other representation, warranty or promise made prior to the date of this MSA unless it was made fraudulently.
20. Notices
20.1 Any notice to a party under this MSA shall be in writing signed by or on behalf of the party giving it and shall:
(a) be delivered to a party personally, be left at, or sent by prepaid first class post, or prepaid recorded delivery to the address of the party as set out in the MSA or as otherwise notified in writing from time to time; or
(b) be sent by email to the notices email address included in the Parties Details section of the MSA or as updated in writing by each party from time to time.
20.2 A notice shall be deemed to have been served:
(a) at the time of delivery if delivered personally;
(b) 48 hours after posting in the case of an address in the United Kingdom and 96 hours after posting for any other address; or
(c) if sent by email, at the time of receipt.
21. Releases and Waivers
21.1 The rights, powers and remedies conferred on any party by this MSA and remedies available to any party are cumulative and are additional to any right, power or remedy which it may have under general law or otherwise.
21.2 Any party may, in whole or in part, release, compound, compromise, waive or postpone, in its absolute discretion, any liability owed to it or right granted to it in this MSA by any other party or parties without in any way prejudicing or affecting its rights in respect of that or any other liability or right not so released, compounded, compromised, waived or postponed.
21.3 No single or partial exercise, or failure or delay in exercising any right, power or remedy by any party shall constitute a waiver by that party of, or impair or preclude any further exercise of, that or any right, power or remedy arising under this MSA or otherwise.
22. Miscellaneous
22.1 The parties agree that no person who is not a party to this MSA shall have any right to enforce any term or terms of this MSA and a person who is not a party to this MSA shall have no right under the Act of the Parliament of the United Kingdom called Contracts (Rights of Third Parties) Act 1999 to enforce any of its terms.
22.2 Nothing in this MSA shall render either party a partner of the other party and neither party shall purport to undertake any obligation on the other party’s behalf nor shall it expose the other party to any liability nor pledge or purport to pledge the other party’s credit in any way whatsoever.
22.3 No variation of this MSA shall be valid unless it is in writing and signed by or on behalf of each of the parties by its respective authorised representatives.
22.4 To the extent that any provision of this MSA is found by any court or competent authority to be invalid, unlawful or unenforceable in any jurisdiction, that provision shall be deemed not to be a part of this MSA, it shall not affect the enforceability of the remainder of this MSA nor shall it affect the validity, lawfulness or enforceability of that provision in any other jurisdiction.
22.5 This MSA may be executed in any number of counterparts, each of which shall be an original, but such counterparts shall constitute one and the same instrument.
23. Governing Law
23.1 This MSA and any issues or disputes arising out of or in connection with it (whether such disputes are contractual or non-contractual in nature, such as claims in tort, for breach of statute or regulation) shall be governed by and construed in accordance with the laws of the Isle of Man.
23.2 Each of the parties irrevocably submits for all purposes in connection with this MSA and any issues or disputes arising out of or in connection with it (whether such disputes are contractual or non-contractual in nature, such as claims in tort, for breach of statute or regulation) to the exclusive jurisdiction of the courts of the Isle of Man.
Annex 1: Definitions and Interpretation
1. Definitions
“Aggregated Rate Plan” means that when the Rate Plan Type is “Aggregated” then, the Rate Plan Allowance for the current monthly billing cycle is calculated based on the total number of IMSI Profiles that are currently allocated to that Rate Plan;
“Aggregated Rate Plan Usage Limit” means for an Aggregated Rate Plan the total number of IMSI Profiles allocated to the Rate Plan multiplied by the Rate Plan Allowance for each Usage type;
“Agreed Currency” means the currency specified in the Parties Details table at the beginning of the MSA;
“AIT” means any use of any part of the Services which:
(a) is made, generated, stimulated, and/or prolonged for the direct or indirect benefit of any entity (including a natural person) operating, hosting or otherwise connected with an electronic communication service as a result of any activity by or on behalf of such entity; and
(b) result in a calling pattern which is disproportionate to the overall amount, duration and/or extent of calls/traffic which would be expected from:
(i) a good faith usage; or
(ii) an acceptable and reasonable commercial practice relating to the operation of mobile electronic communications systems;
“APN” means a gateway that connects a mobile device to the internet via a carrier’s network;
“Applicable Laws” means any relevant:
(a) statute, statutory provision or regulatory requirements;
(b) binding court order, judgement or decree; and/or
(c) common law;
as applicable to the parties in connection with this MSA and as in force from time to time;
“Annex 1.1” and “Annex 1.2” mean respectively Annex 1.1 and Annex 1.2 to Schedule 1 of this OV MSA;
“Annex 2.1” means Annex 2.1 to Schedule 2 of this OV MSA;
“Annex 4.1”, “Annex 4.2” and “Annex 4.3” mean respectively Annex 4.1, Annex 4.2 and Annex 4.3 to Schedule 4 of this OV MSA;
“Business Days” means shall mean any day which is not a Saturday or a Sunday or any public holiday or bank holiday recognised in the Isle of Man;
“Charges” means the charges for the Services as specified in paragraph 1 of Schedule 1 of the MSA;
“Charges List” means the charges list issued from time to time in accordance with this MSA;
“Confidential Information” means any information of a confidential nature which, if disclosed in writing, is expressly stated to be confidential or, if disclosed orally, is said to be confidential or can reasonably be expected to have been considered confidential;
“Control” means, in relation to a company, the ownership of more than 50% of the issued share capital in that company;
“Data Processor” has the meaning set out in the Data Protection Laws;
“Data Protection Laws” means the Applicable Laws relating to the protection of personal data;
“DDI” means the term used by OV to identify MSISDN numbers that are usually provided to OV by third parties;
“Default Rate Plan” means the default Rate Plan (specified on the Rate Plan Order Form) that is applicable to an IMSI Profile that is not allocated to another Rate Plan on the respective Rate Plan Order Form;
“Device” means any device capable of connecting to a mobile electronic communications network;
“Effective Date” means the date upon which OV will commence provision of the Services under this MSA;
“Eligible Charges” means Usage Charges and or Rate Plan Charges (exclusive of VAT), as applicable;
“eSIM” means an embedded subscriber identity module (SIM) which is a form of programmable SIM Card on which is located an integrated circuit that enables authentication onto a mobile telephony network using a digital profile that is downloaded remotely from a mobile network operator or authorised profile supplier and which is stored on a secure element, the eUICC;
“eUICC” means an embedded universal integrated circuit card that can contain multiple IMSI Profiles;
“Force Majeure Event” means any matter outside the reasonable control of the affected party including, without limitation, Acts of God, storm, earthquake, fire, flood, war, industrial action (not involving its own employees) and inclement weather conditions;
“Fraud” means any fraudulent or other unauthorised use (whether actual or attempted) of any Services, or the use or attempted use of any Services by corrupt, dishonest or illegal means, at any time and by any person;
“IMSI” means International Mobile Subscriber Identity which when properly incorporated into a SIM Card or an eSIM or an iSIM enables authentication onto a mobile telephony network;
“IMSI Profile” means each IMSI profile that is or has been supplied by OV to the Customer for use to access the Services;
“IMSI Supply Charges” means the IMSI supply charges specified in the applicable Order Form;
“Initial Term” means the initial or committed period specified in the MSA (if any);
“Intellectual Property Rights” means copyright, patent rights, design rights, database rights, trademarks and all other rights of a similar nature whether registered or not as may be exercised in any part of the world;
“IoT Best Practices” means industry best practice for connecting IoT devices to a mobile network including the GSMA IOT Device Connection Efficiency guidelines;
“iSIM” means an integrated subscriber identity module (SIM) that enables authentication onto a mobile telephony network and which is integrated into a device’s system-on-a-chip (SoC) within a logically separated but integrated security area of the SoC instead of comprising a physically separated processor on which is located an integrated circuit that enables such authentication onto a mobile telephony network;
“Mandatory Terms” means terms with the same legal effect as those set out in Annex 2 to this Schedule;
“Metered Rate Plan” means that when the Rate Plan Type is “Metered” then, no Rate Plan Allowance applies and that all Usage is charged according to the specified Out of Allowance Charges;
“Minimum Order Quantity for SIM Cards” means the minimum order quantities specified on the relevant SIM Card Order Form and as updated from time to time;
“Monthly Active IMSI Charge” means the charge that is incurred by an IMSI Profile during each calendar month in which that IMSI Profile is active and creates an event on the OV Network or any OV Partner Network;
“Monthly Bootstrap Charge” means the charge that is incurred by an eUICC during each calendar month in which that eUICC has at least one IMSI Profile provisioned on the OV Network or any OV Partner Network at any point during that month;
“Monthly OV Partner Access Charge” means the relevant per network access charge that is incurred when a particular IMSI Profile accesses each particular OV Partner Network at any time in the relevant calendar month, irrespective of whether that IMSI Profile is active or creates an event;
“Monthly Provisioned IMSI Charge” means the charge that is incurred by an IMSI Profile during each calendar month in which that IMSI Profile is provisioned on the OV Network or any OV Partner Network at any point during that month;
“MSISDN” means mobile station international subscriber directory number which can be assigned to an IMSI;
“Order Form” means: (a) an order in the form set out in Annex 4.2 for SIM Cards and/or IMSIs which has been signed by both parties; or (b) an order in the form set out in Annex 4.3 for Other Services which has been signed by both parties; or (c) a Rate Plan in the form set out in Annex 4.1 which has been signed by both parties; or (d) an order for SIM Cards and/or IMSI’s and or other services (such as DDI’s, APN’s, MSISDN’s etc) placed through the OV Support Portal and agreed by the parties electronically via the OV Support Portal as described in paragraph 5.1(b) of this Annex 3 (Services);
“OV Group Company” means OV and any:
(a) company which has Control of OV;
(b) company which is Controlled by OV; or
(c) any company under common Control with OV;
“OV Network” means the mobile electronic communications network:
(a) operated by OV from time to time (if any); and/or
(b) operated by any other MNO host and which is available to OV pursuant to a wholesale services agreement;
“OV Partner Networks” means the mobile electronic communications network in respect of which OV has arrangements for roaming and/or sponsored roaming (including those which OV has access to pursuant to a wholesale services agreement with Manx Telecom);
“OV Support Portal” means the internet support portal (https://support.worldov.com) where Customer can log support requests such as reporting Service Issues and SIM Card order requests;
“Paragraph” means a reference to a paragraph of this OV MSA;
“Personal Data” has the meaning set out in the Data Protection Laws;
“Rate Plan” means a particular service product which may include but not be limited to bundles of Usage (voice airtime, data and SMS) offered by OV for an agreed monthly or other periodic payment (including the Rate Plan Subscription Charge);
“Rate Plan Activation Grace Period” means a number of days after the Rate Plan IMSI Profile Provisioned For Use Date during which IMSI Profiles that are provisioned for a Rate Plan should be activated. The Rate Plan Activation Grace Period Days is 90 days unless specified otherwise on any Rate Plan Order Form;
“Rate Plan Allowance” means the allowance for Usage under a Rate Plan as set out in the Rate Plan Order Form (with data usage rounded to the nearest Rate Plan Chargeable Increment);
“Rate Plan Chargeable Increment” means the unit of charging for data use as part of each Rate Plan;
“Rate Plan Charges” means the charges that apply to individual Rate Plans as specified on the then current Rate Plan Order Form;
“Rate Plan Countries” means the Rate Plan countries that are included within each Rate Plan, as set out in the Rate Plan Order Form;
“Rate Plan IMSI Profiles” means, in respect of any one billing month, the IMSI Profiles subject to a Rate Plan which have a Rate Plan IMSI Profile Effective Charging Date that is equal to or prior to the last day of the calendar month being invoiced;
“Rate Plan IMSI Profile Effective Charging Date” means for each IMSI Profile subject to Rate Plan, the date that is the sooner of either, 1). The expiry of the Rate Plan Activation Grace Period or, 2). The date on which the IMSI Profile associated with the relevant Rate Plan first creates an event on the network;
“Rate Plan IMSI Profile Provisioned For Use Date” means the date upon which OV or the Customer has provisioned an IMSI Profile to be associated with a Rate Plan;
“Rate Plan Initial Term” means the minimum term for a Rate Plan IMSI Profile as set out in the Rate Plan Order Form which if not specified will be set at 30 days’;
“Rate Plan Order Form” means an order in the form set out in Annex 4.1 for a Rate Plan which has been signed by both parties;
“Rate Plan Out of Allowance Charges” means the charges that apply to Usage under a Metered Rate Plan or to Usage outside the Aggregated Rate Plan Usage Limit, in each case set out in the Rate Plan Order Form;
“Rate Plan Subscription Charge” means the monthly charge specified on the Rate Plan Order Form that following the Rate Plan IMSI Profile Effective Charging Date will be applied in full to each Rate Plan IMSI Profile and will continue to be charged for the Rate Plan Initial Term per IMSI Profile and thereafter until the IMSI Profile is removed from the Rate Plan or the Rate Plan is terminated in accordance with this MSA;
“Rate Plan Term” means the term of the Rate Plan determined in accordance with the Rate Plan Order Form which if not specified will be set at 12 months;
“Service Commencement Date” means the date on which the Services are due to commence as set out in the front of the MSA;
“Service Materials” means any software or other material provided by OV as part of its provision of Services;
“Services” means the services described in the MSA;
“SIM Card” means a subscriber identity module card, being a smart card that stores data and enables authorisation onto mobile telephony networks and includes both eSIM and iSIM as well as a traditional smart card as has been supplied by OV pursuant to this MSA;
“SIM Supply Charges” means the SIM supply charges specified in the applicable Order Form;
“Supply Charges” means the SIM Supply Charges and IMSI Supply Charges;
“Term” means the period referred to in Clause 2;
“Trial Rate Plan” means a bespoke trial Rate Plan (where specified on a Rate Plan Order Form) where the charges for the Trial Rate Plan per IMSI Profile are included in the charges specified on a SIM Card / IMSI Order Form. Once the Trial Rate Plan Expires for an IMSI Profile then, the IMSI Profile is automatically applied to another Rate Plan according to the allocation rules specified by Customer;
“Trial Rate Plan Expires” means for an IMSI Profile on the Trial Rate Plan either, 1) the Rate Plan Allowance has been exceeded for the respective Trial Rate Plan IMSI Profile or, 2) a Trial Rate Plan IMSI Profile has had Usage that is not included in the Trial Rate Plan Allowance or, 3) the Rate Plan Activation Grace Period has Expired;
“Usage” means, in relation to SIM Cards and IMSI’s, the usage related to voice, data, VoLTE and SMS;
“Usage Charges” means the charges that relate to Usage;
“User” means either a user or a device that accesses the Services pursuant to this MSA;
“VoLTE” means voice over LTE, a technology that allows high-quality voice calls over a 4G LTE network instead of traditional 2G or 3G networks;
“VoLTE Activation Charge” means the activation charge applied to an IMSI Profile when first provisioned on the OV Network for VoLTE;
“VPN” or “Virtual Private Network” means a service that creates a secure and encrypted connection over a less secure network, such as the Internet;
“Wholesale Charges” means all those charges due for access and Usage as referred to in paragraph 3.1 of Schedule 1 of the MSA;
“Year” means the period of 12 months from the Effective Date and each anniversary of such date.
2. Interpretation
In this MSA, unless the context otherwise requires:
(a) words in the singular include the plural and vice versa and words in one gender include any other gender;
(b) a reference to a statute or statutory provision includes:
(i) any subordinate legislation made under it;
(ii) any repealed statute or statutory provision which it re-enacts (with or without modification); and
(iii) any statute or statutory provision which modifies, consolidates, re-enacts or supersedes it;
(c) a reference to any regulations, guidelines or the like issued by any regulatory body having jurisdiction or other influence over the parties shall be deemed to include any renewal, replacement or amendment thereof;
(d) a reference to any party includes its successors in title and permitted assigns;
(e) a reference to a “person” includes any individual, firm, body corporate, association or partnership, government or state (whether or not having a separate legal personality);
(f) a reference to a Clause or Schedule is to a Clause of or a schedule to this MSA;
(g) a reference to a paragraph or Annex is to a paragraph or Annex in the applicable Schedule;
(h) a reference to “other”, “includes”, “including”, “for example” and “in particular” do not limit the generality of any preceding words and any words which follow them shall not be construed as being limited in scope to the same class as the preceding words where a wider construction is possible;
(i) a reference to the table of contents and the headings of Clauses are for convenience only and shall not affect the interpretation of this MSA;
(j) a reference to any undertaking under this MSA not to do any act or thing shall be deemed to include an undertaking not to permit or suffer the doing of that act or thing; and
(k) in the event and to the extent only of any conflict between any sections of this MSA, the following order of precedence shall apply:
(i) Order Form;
(ii) Schedules 1 to 4; and
(iii) Schedule 5.
Annex 2: Mandatory Terms
1. Use of Services
1.1 The customer is responsible for its own acts and omissions and the acts and omissions of each user in connection with any of the Services.
1.2 The customer shall not:
(a) knowingly engage in, assist or allow others to engage in AIT;
(b) do anything that is likely to impair, interfere with or damage or cause harm or distress to any persons, the OV Network or the operation of the Services (including, by way of example only and without limitation, SMS spamming, excessive location server polling, operating a gateway, nuisance or abusive calls);
(c) permit the Services to be used for any illegal, immoral or unlawful purpose;
(d) be involved in or permit any users or any of its employees, representatives or agents to be involved in fraud (including without limitation generating AIT); or
(e) do anything that is likely to cause harm or distress to any persons.
1.3 The Customer shall use reasonable endeavours to comply with best practice in respect of the use of the Services, including in relation to the connection of devices.
Annex 3 – Services
1. Introduction
1.1 The Services shall comprise the:
(a) the Implementation Services (if any) as described in paragraph 2,
(b) the Network Services in accordance with paragraph 3,
(c) access to the Connectivity Management Portal in accordance with paragraph 4,
(d) the supply of SIM Cards and IMSIs in accordance with paragraph 5.
2. Implementation Services
2.1 Any Customer specific implementation or configuration will be included in Schedule 3 of the MSA.
3. Network Services
3.1 SIM Cards and IMSIs, when provisioned in accordance with this MSA, will provide Users with such of the following services as the SIM Cards or IMSIs have been provisioned to access:
(a) voice services;
(b) SMS services; and
(c) data services,
in each case using the network technology and providing the network features and quality of service as is available from time to time pursuant to OV’s wholesale agreements with OV Partner Networks and/or Manx Telecom.
4. Connectivity Management Portal
4.1 OV shall permit the Customer to access the OV Connectivity Management Portal so that the Customer will be able to undertake day-to-day management of their estate, including some or all of the following features (dependant on the overall solution provided to the Customer, some or all of these features may or may not be available):
(a) Viewing of data usage, tariff and rate information and device location;
(b) Control of Rate Plans, activation, provisioning and SIM Card life cycle management.
5. Supply of SIM Cards, IMSIs and Other Services
5.1 If the Customer requires any SIM Cards, IMSIs or other services to be supplied during the Term, then either:
(a) Customer and OV shall work together to complete an order in the form set out in Annex 4.2 (for SIM Cards and IMSI’s) and as set out in Annex 4.3 (for Other Services). Upon signature by Customer, Customer shall send it to OV by email (to: customersuccess@worldov.com). Such order shall become binding upon countersignature by OV, whereupon it shall form part of and be subject to the MSA; or
(b) Customer will complete the order process outlined on the OV Support Portal with such order becoming binding at the point the customer completes the order agreed step in the order process, whereupon it shall form part of and be subject to the MSA.
5.2 OV shall supply such SIM Cards and/or IMSIs and/or other services ordered pursuant to an Order Form accepted by OV. Such SIM Cards, IMSIs or other services shall be configured as per the Configuration Table or as specified within the relevant Order Form.
5.3 SIM Cards and IMSIs provided by OV shall be configured by or on behalf of OV to provide any or all of the following functionality:
(a) voice calls to be made and received – which will result in Charges being incurred for outbound calls based on the destination number dialled and for inbound calls based on the network location of the User;
(b) text messages to be sent and received – which will result in Charges being incurred for mobile originated and mobile terminated text messages on a per-message basis; and
(c) data sessions to be initiated and operated – which will result in Charges being incurred for data usage on a per megabyte basis and also in minimum increments.
5.4 Orders for SIM Cards and IMSIs shall be in the form set out in the applicable Order Form.
Annex 4 – Support Services
1. Introduction
1.1 This Annex 4 identifies and allocates support obligations and responsibilities in relation to the Services for each of the parties.
1.2 The Customer shall be responsible for ensuring that all information and data regarding the Customer that is contained within Schedule 2 of the MSA is accurate and up to date as amended from time to time.
1.3 If the Customer does not comply with the provisions of paragraph 1.2, then OV shall not be responsible if OV fails to comply with its support obligations provided in this Annex 4 as a result of any Customer data or information not being accurate or up to date.
1.4 The terms definitions provided below shall apply to this Annex 4 and the MSA:
First Line Service Support shall be the first line support that is to be provided by the Customer in relation to the Services that shall include the capability to take all reasonable trouble-shooting steps to resolve Service Issues;
OV Core Network Engineering Team means the engineering team within OV that specialises in technical matters related to the core/main part of the OV Network;
OV Hours of Operation shall be as follows:
a) the OV SOC shall be available 24 hours per day and 365 days per year to answer telephone calls related to major service issues;
b) the OV Network Engineering Team shall be available from 8am to 5pm (UK time) during each Business Day; and
c) OV service management team shall be available from 9am to 5pm (UK time) during each Business Day;
OV Service Issue Response Time in each case shall be as provided in columns three and four the Service Issue Severity table included in Annex 2.1;
OV SOC means the OV’s Service Operation Centre;
Service Issue means a fault or other issue with the Services that degrades the performance or functionality or availability of the Services to the Customer or the Users; and
Service Issue Severity the severity of each Service Issue shall be as provided in the Service Issue Severity Table set out in Annex 2.1.
2. Customer Support Obligations
2.1 Following the identification of a Service Issue by either of the parties or any User and its reporting to the Customer (as the case may be), the Customer shall be solely responsible for:
a) providing First Line Service Support in relation to such Service Issue; and
b) assigning a Service Issue Severity to the Service Issue.
2.2 If the Customer is unable to resolve a Service Issue after providing First Line Service Support then, the Customer shall be entitled to report the Service Issue to OV SOC in accordance with paragraph 1.2 of Schedule 2.
3. OV Support Obligations
3.1 Following the reporting of a Service Issue to OV in accordance with paragraph 2.2 then, OV shall be required to carry out further investigations and trouble-shooting steps in order to attempt to resolve the Service Issue.
3.2 If a Service Issue is reported to OV that requires further investigation by OV Core Network Engineering Team, then it will be allocated to a member of the OV Core Network Engineering Team.
3.3 If the Customer has not provided First Line Service Support in relation to a Service Issue then:
a) OV shall not be required to provide any support or commit any resource to resolve the Service Issue until the Customer has complied with its service support obligations provided in paragraph 2.1; and
b) the OV Service Issue Response Time shall not commence until such time that the Customer has complied with its service support obligations as provided in paragraph 2.1.
3.4 If in OV’s opinion (acting reasonably):
a) one or a series of Service Issues are caused by the Customer’s direct or indirect actions or omissions; or
b) the Customer or its technical advisors wilfully or repeatedly incorrectly assign a Service Issue Severity to a Service Issue that is too high,
c) then, OV shall be entitled to recover from the Customer any reasonable costs or expenses that OV may incur in relation to such Service Issue and/or the Customer’s actions or omissions (including, but not limited to, any call-out charges) and the Customer hereby undertakes to pay such charges.
3.5 If the Customer fails to assign a Service Issue Severity to Service Issue when reporting it to the OV SOC, then the Service Issue shall automatically be assigned with a Service Issue Severity of Level 3 or Normal until such time as the Customer assigns a Service Issue Severity.