Terms and Conditions for Registration and Use of Trial Services on the NetLync ES Portal of NetLync Mobile Communication Technologies Ltd.
These Terms and Conditions for Registration and Use (the “Terms”) govern the registration for and the use of NetLync ES developer portal (“Portal”). The definition of NetLync shall also include, as the context requires, NetLync's respective Affiliates (as defined in clause 11 para 2 below).
For the purpose of these Terms, “carrier” shall mean any Entrepreneur that is a mobile network operator registered with the Global System for Mobile Communications Association (GSMA) interested in being registered or is already registered with NetLync for use of the Portal.
The registration for and use of the Portal does not establish any obligation of NetLync to conclude any contract or to accept any order from the carrier. The future business relationship, if any, between NetLync and the carrier will be subject to the execution of specific separate commercial agreements.
This Portal is dedicated to trial activities only and is meant to be used by the carriers in order to test the Entitlement Server technology. The services offered by this Portal (“the Services”), which are offered free of charge, are not meant for any commercial use but solely for trial purposes and the carrier shall only use dedicated test data when using it. The Services are not delivered for any manner of commercial use but for testing purposes only and NetLync cannot warrant that the Services are free from errors, deliver a certain performance or are rendered without interruption.
2. Registration; Access to the Portal
Only carriers invited by NetLync may register for and make use of the Portal according to the Terms. To register for the Portal, the carrier shall open the web link in NetLync’s email invitation or otherwise use the web link communicated by NetLync and enter the required information completely and correctly into the web form provided by NetLync. During the registration process, the carrier shall enter the name(s) and contact details of the user(s) who shall be entitled to access and use the Portal on behalf of the carrier (each a “User”). For each User, a personal and password-protected account for accessing and using the Portal (“User Account”) will be created during the registration process.
The carrier may create additional User Accounts and/or delete them after registration as reasonably required by the carrier.
3. User Account(s), Prohibited Use
The carrier shall ensure that the Users keep their User Account and any related credentials (e.g., passwords, access to authenticator and its credentials) confidential. carrier shall ensure that only Users have access to the User Account(s) and that each User shall use only his/her personal User Account. The carrier shall inform NetLync without undue delay of any unauthorised access to a User Account or if unauthorised persons have gained knowledge of credentials for a User Account. Further, the carrier shall ensure that credentials of the affected User Account are changed immediately. NetLync may temporarily block all affected or potentially affected User Account(s) from access to the Portal until any security issues are resolved.
The carrier shall ensure that all information provided by the carrier via the Portal is correct and complete and shall inform NetLync without undue delay of any changes of the information provided.
In addition to other prohibitions as set forth in the Terms, the carrier as well as Users are prohibited from using the Portal or its content: (a) for any unlawful purpose; (b) to solicit others to perform or participate in any unlawful acts; (c) to violate any international, federal, provincial or state regulations, rules, laws, or local ordinances; (d) to infringe upon or violate an intellectual property rights or the intellectual property rights of others; (e) to harass, abuse, insult, harm, defame, slander, disparage, intimidate, or discriminate based on gender, sexual orientation, religion, ethnicity, race, age, national origin, or disability; (f) to submit false or misleading information; (g) to upload or transmit viruses or any other type of malicious code that will or may be used in any way that will affect the functionality or operation of the Services or of any related website, other websites, or the Internet; (h) to collect or track the personal information of others; (i) to spam, phish, pharm, pretext, spider, crawl, or scrape; (j) for any obscene or immoral purpose; or (k) to interfere with or circumvent the security features of the Services or any related website, other websites, or the Internet. We reserve the right to terminate carrier’s as well as User’s access to the Portal for violating any form of the aforementioned prohibited uses.
The carrier as well as Users shall ensure that the Portal is not used (i) in a way that may interrupt, damage or otherwise impair performance of and/or access to the Portal, and/or (ii) for fraudulent activities, in connection with criminal and/or otherwise unlawful acts.
In case the carrier has reason to believe that the Portal has been used in a prohibited manner, they shall notify NetLync without delay via the contact information provided as part of the imprint accessible via the Portal.
NetLync retains the right to temporarily or permanently refuse the carrier’s access to the Portal and/or to suspend or to close any or all User Account(s).
The carrier shall be responsible for any Portal-related activities carried out by the use of User Account(s) and/or related credentials (e.g., passwords).
Any action of employees, agents, representatives of the carrier and/or any other users related to the User Account(s) are deemed actions of the carrier.
4. Data protection
5. Confidentiality; No Licence
Any information, documents and data which a party (the “Disclosing Party”) may disclose or make available to the other party (the “Receiving Party”) via the Portal shall be treated as confidential and shall be used only for the purpose agreed (expressly or implied) and may not be disclosed or made available to any third party without the prior written consent of the Disclosing Party.NetLync and/or its Affiliates shall not be considered as third parties. The confidentiality obligations shall not apply to information, documents and data that are or become public domain without the fault of the Receiving Party or that are already known to the Receiving Party at the time of disclosure. The confidentiality obligations shall continue to be binding unless the relevant information becomes public domain without the fault of the Receiving Party.
Any intellectual property rights embodied in any document or other information within the Portal remains vested with the respective owner. Except as expressly provided otherwise in writing, no licence whatsoever is granted, expressly or implied, by the registration for or use of the Portal.
6. Accuracy, Completeness and Timeliness of Information
NetLync cannot warrant that information made available on the Portal is always accurate, complete or current. The material on the Portal is provided for general information only and should not be relied upon or used as the sole basis for making decisions without consulting primary, more accurate, more complete or more timely sources of information. Any reliance on the material on the Portal is at carrier’s own risk. We reserve the right to modify the contents of the Portal at any time, but we have no obligation to update any information on NetLync’s site.
7. Access and Security
We reserve the right to refuse access to the Portal to anyone for any reason at any time, namely in the case of suspected security breaches. The carrier as well as the User understand that their information may be transferred unencrypted and involve (a) transmissions over various networks; and (b) changes to conform and adapt to technical requirements of connecting networks or devices. The carrier as well as the User agree not to reproduce, duplicate, copy, sell, resell or exploit any portion of the Services, use of the Service, or access to the Service or any contact on the Portal through which the Services are provided, without express written permission by NetLync.
8. Availability of the Portal
NetLync strives for the availability of the Portal on a 24/7 basis. However, availability of the Portal is not warranted and may be interrupted with or without prior notice due to maintenance service, technical issues or issues beyond NetLync’s reasonable control. Any such malfunctions shall not constitute any claim of the carrier against NetLync.
In case of planned maintenance or changes to the Portal which have an impact on its availability, NetLync will inform the carrier where reasonably possible five (5) business days in advance.
The carrier shall inform NetLync promptly if the Portal is unavailable or its use is interrupted.
The carrier shall ensure that its software and hardware is suitable to access and use the Portal and is properly maintained.
NetLync assumes liability for damage or loss incurred by the carrier only to the extent that NetLync or any person employed by NetLync in the performance of its obligations hereunder is guilty of gross negligence or deliberate action. Beyond this, NetLync shall also be liable, up to the amount of the typically foreseeable damage or loss, for such damage or loss that NetLync or such persons as it employs for the purpose of performing its obligations under these Terms may cause in breach of a material contractual obligation.
This limitation of liability shall apply with regard to all claims for damages, on whatever legal basis, in particular also with regard to claims based on pre-contractual or accessory obligations. However, it shall not limit liability that is mandatory under product liability law, liability for injury to life, body or health resulting from deliberate or negligent acts or omissions, or liability for an explicit guarantee.
Notwithstanding the second sentence of the previous paragraph, to the extent that any claims for damages of the carrier against NetLync are based on culpable negligence on the part of NetLync or of persons employed by NetLync in the performance of its obligations, these claims fall under the statute of limitations 12 months after origination of the claim. Claims arising out of tort remain unaffected.
The provisions of this clause shall apply mutatis mutandis to the carrier’s liability towards NetLync.
10. Term of use; Termination; Discontinuation of the Portal
After registration, the carrier has access to and may use the Portal for an indefinite period of time. Each party may terminate the use of the Portal at any time by giving notice in writing to the other. Upon termination, the carrier shall immediately refrain from using the Portal. In case of termination by carrier NetLync will close the carrier’s User Account(s) upon receipt of the carrier’s written notice.
NetLync may terminate and close the carrier’s User Account(s) with immediate effect in case of the carrier’s breach of the Terms.
If NetLync decides, at its sole discretion, to discontinue the Portal, NetLync shall provide the carrier with at least fourteen (14) days prior written notice.
The carrier as well as the User agree to indemnify, defend and hold harmless NetLync and its parent companies, subsidiaries, affiliates, partners, officers, directors, agents, contractors, licensors, service providers, subcontractors, suppliers, interns and employees, from any claim or demand, including reasonable attorneys’ fees, made by any third-party due to or arising out of the carrier’s and/or User’s i.) breach of these Terms or ii.) violation of any law or the rights of a third-party.
12. Changes of the Portal
NetLync reserves the right to make changes to the Portal at any time without prior notice.
13. Changes of the Terms
NetLync may change the Terms in whole or in part at any time in its reasonable discretion. NetLync will notify the carrier of a new version of the Terms in due course. Upon the carrier’s acceptance of such a new version, the latter will replace the Terms currently in effect.
A new version of the Terms will be deemed accepted, if the carrier does not object to them in writing within one (1) month after having been notified by NetLync of a new version. If the carrier does object to a new version of the Terms, NetLync and/or the carrier may terminate the use of the Portal within ten (10) business days in writing. NetLync will inform the carrier accordingly when notifying of a new version of the Terms.
The carrier shall not assign or transfer the use of the Portal, or any of its rights and/or obligations under the Terms, to any third party without the prior written consent of NetLync.
NetLync may assign or transfer the Portal, or any rights and/or obligations under the Terms to any of its Affiliates. “Affiliate” shall mean any other company or corporation that directly or indirectly Controls, is Controlled by or is under common Control with NetLync, whereby “Control” and“Controlled by” means the possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of such company or corporation, whether through the ownership of shares or voting rights, by contract or otherwise.
Where the Terms require written form of any notice, the use of e-mail is permitted.
The Terms shall be governed exclusively by Canadian law without reference to the UN Convention on the International Sale of Goods (CISG) and without the conflict of laws principles.
The exclusive place of jurisdiction and venue shall be the competent courts for Vancouver, Canada.
If any provision of these Terms is or becomes invalid, either as a whole or in part, this shall not affect the validity of the remainder of these Terms. NetLync and the carrier agree to replace the invalid provision by a provision, which serves the purposes of these Terms as closely as possible. The same shall apply to any gap in these Terms.