NEXTOCELL SRL ("NTC") IS WILLING TO PROVIDE THE NEXTOCELL SERVICES TO THE CUSTOMER, BEING THE PERSON, COMPANY, OR LEGAL ENTITY SET OUT IN THE REGISTRATION ORDER FORM ("ORDER FORM"), ON THESE STANDARD TERMS AND CONDITIONS (THE "STANDARD TERMS"). THE CUSTOMER MUST READ THESE STANDARD TERMS CAREFULLY BEFORE USING THE SERVICES. ONCE ENTERED, THE ORDER FORM AND THE STANDARD TERMS CONSTITUTE A LEGAL AND ENFORCEABLE CONTRACT BETWEEN THE CUSTOMER AND NTC (THE "AGREEMENT"). BY USING THE SERVICES, EXPORTING ANY REPORTS, CLICKING THE ["SIGN UP"] BUTTON, OR OTHERWISE INDICATING AGREEMENT, THE CUSTOMER AGREES TO THESE STANDARD TERMS. IF THE CUSTOMER DOES NOT AGREE TO THESE STANDARD TERMS, THE CUSTOMER SHOULD NOT CLICK THE ["SIGN UP"] BUTTON AND MAKE NO USE OF THE SERVICES.
1.1 The following definitions apply to this Agreement:
"Advertising Regulation": means any applicable advertising law, regulations or standards,
data laws relating to advertising, any generally accepted self-regulatory codes of practice, and
any related guidance or best practice advice.
"Business Day": means any day which is not a Saturday, Sunday or public holiday in France.
"Customer Data": means any data provided to NTC by or on behalf of the Customer.
"Customer Website": means any website owned or operated by the Customer, including any
respective website servers.
"Data Regulation": means any data protection, privacy or similar laws that apply to data
processed in connection with this Agreement, including any regulations implementing the
Data Protection Directive 95/46/EC or Privacy and Electronic Communications Directive
2002/58 or any amendments to them.
"Effective Date": means the date of submission of the Order Form.
"Intellectual Property Rights": means all copyright and related rights, patents, rights to
inventions, utility models, trade marks, service marks, trade, business and domain names,
rights in trade dress or get-up, rights in goodwill or to sue for passing off, unfair competition
rights, rights in designs, rights in computer software, database right, topography rights, moral
rights, rights in confidential information (including know-how and trade secrets) and any
other intellectual property rights, in each case whether registered or unregistered and
including all applications for and renewals or extensions of such rights, and all similar or
equivalent rights or forms of protection.
"NTC API": means the application programming interface used to integrate the Customer
Website with the Console.
"NTC Script": means the software code, scripts, plugins or snippets used to integrate the
Customer Website with the Console.
"Reports": means the reports, measurements and analytics in respect of the use of the
Customer Website created by use or operation of the Services.
"Services": means the Console, NTC API, NTC Script and NTC ANTI FRAUD Reports.
"Console": means the online service owned or operated by NTC and available at
www.nextocell.com, for the testing of mobile networks across the globe.
1.2 A "person" includes a natural person, corporate or unincorporated body.
1.3 Unless the context otherwise requires, words in the singular include the plural and in the
plural include the singular.
1.4 The words "include" and "including" (or similar) shall be deemed to have the words
"without limitation" after them.
2.1 NTC will:
- allocate a username and password to the Customer; and
- provide access to and host the Services.
2.2 The Customer's access to the Service is limited to the Customer and its representatives.
2.3 The Customer will keep its password confidential. NTC will not be liable for any losses or
damage suffered by the Customer due the disclosure of its password.
2.4 The Customer may integrate any Customer Website with the Console by use of the NTC
Script or the NTC API in accordance with this Agreement.
2.5 Use by the Customer of some features of the Service may be subject to the provision of
additional Customer information, or evidence of authorisation to bind the Customer.
2.6 NTC may change any aspect of the Services at its discretion.
2.7 The Customer may export Reports by any means, and in any format, enabled by the
2.8 The Customer will use all reasonable endeavours to prevent any unauthorised access to, or
use of, the Service and notify NTC promptly of any such unauthorised access or use.
3.1 Subject to the terms and conditions of this Agreement, NTC hereby grants to the
Customer a revocable, non-exclusive, non-transferable, non-sublicensable licence to:
3.1.1 integrate NTC API;
- access the Console as hosted by NTC; and
- to use the Reports for its information only.
3.2 Subject to the terms and conditions of this Agreement, NTC hereby grants to the
Customer an irrevocable, sole, non-transferable, non-sublicensable licence to use exported
versions of any Reports for its information only.
3.3 The rights provided under clause 3 are granted:
- to the Customer only and not to any subsidiary or holding company of the Customer; and
- solely for the purposes of testing the effectiveness of mobile networks for the delivery of
voice and SMS through the technology and infrastructure owned by NTC.
3.4 Subject to the terms and conditions of this Agreement, the Customer hereby grants to
NTC a revocable, non-exclusive, non-transferable, non-sublicensable licence to use Customer
Data for the purposes of providing the Services.
4.1 The Services are currently offered based on the fees set out within the Console. On
reasonable notice to the Customer, NTC may at its discretion, impose a charge on the
provision or the licence of the Services, subject to any terms NTC see fit. For the avoidance
of doubt, any changes to the fees, will be apply with a one month notice to all customer
remaining credits, that include all monies paid in advance to NTC which are yet credited
against the services, at the effective date of new rates.
4.2 NTC’s default position with Customer is that the fees to use the Service are paid in
advance and any credit held by the Customer must be spent within 3-months, otherwise it will
4.3 If agreed in writing between NTC and a Customer, the Customer can pay at the end of
each month during which the Service is delivered based on an invoice to be delivered by
email by VSA specifying the amounts owing from the Customer, which shall become
immediately due and payable to VSA upon receipt of the invoice.
5.1 Each of the parties warrants that:
- it has full power and authority to enter into this Agreement;
- it has all the rights necessary for any licence it grants under at clause 3; and
- it will perform its obligations under this Agreement in accordance with all applicable laws.
5.2 NTC warrants that it will provide the Services with reasonable skill and care.
5.3 The Customer warrants that:
- all information it submits to NTC, including any Customer Data, is truthful, accurate and
will be kept up to date;
- it is the owner or operator of the Customer Websites and is permitted to integrate the
Customer Websites with the Console;
- it will not use the Services to provide reporting services to third parties;
- it will not use the Services in breach of Advertising Regulation or Data Regulation; or
- it will not use the Services to build a product or service which competes with NTC or the
NTC and/or its licensors own all Intellectual Property Rights in the Services, or created by use
or operation of the Services. Except as expressly stated in this Agreement, NTC does not
grant the Customer any Intellectual Property Rights in respect of the Services or any related
content or materials.
7.1 In this clause, "Confidential Information": means the Reports, any Customer Data and any
other information that is clearly labelled or identified as confidential or ought reasonably be
treated as being confidential. Confidential Information excludes any information which:
- is or becomes publicly known other than through a breach of this Agreement;
- was in the receiving party's lawful possession before the disclosure;
- is lawfully disclosed to the receiving party by a third party without restriction on disclosure;
- is independently developed by the receiving party and that independent development can be
shown by written evidence; or
- is required to be disclosed by law, by any court of competent jurisdiction or by any
regulatory or administrative body.
7.2 Each party will hold the other's Confidential Information in confidence and not make the
other's Confidential Information available to any third party unless that third party is subject
to an equivalent duty of confidentiality. Neither party will use the other's Confidential
Information for any purpose other than the implementation of this Agreement.
7.3 Each party will take all reasonable steps to ensure that the other's Confidential
Information to which it has access is not disclosed or distributed by its employees, agents or
independent contractors in breach of the terms of this Agreement.
7.4 This clause 7 will survive termination of this Agreement for a period of 5 years.
8.1 This clause 8 sets out NTC's entire financial liability (including any liability for the acts or
omissions of its employees, agents and subcontractors) to the Customer:
- arising under or in connection with this Agreement;
- in respect of any use made by the Customer of the Services or any part of them;
- in respect of any loss of Customer Data; and
- in respect of any representation, misrepresentation (whether innocent or negligent),
statement or tortious act or omission (including negligence) arising under or in connection
with this Agreement.
Except as expressly and specifically provided in this Agreement the Customer assumes sole
responsibility for its use of the Services, and for the results of, or conclusions drawn from,
such use. NTC will have no liability for any damage caused by malfunction of its network,
any third party network linked to its network or the lack of availability of some or all of its
testing network or by any errors or omissions in any Reports. For the avoidance of doubt, the
Customer is not entitled to any refund of fees paid in advance from NTC for any event
described in this clause 8.
8.2 The Services are provided "as is" to the fullest extent permissible pursuant to applicable
law. NTC disclaims all warranties and conditions express or implied, including, but not
limited to, implied warranties of satisfactory quality and fitness for a particular purpose, in
relation to the Services, their use and the results of such use. NTC specifically disclaims any
- that the Services or their use comply with all Data and other relevant Regulation;
- that the Services and their availability will be uninterrupted or error-free;
- that defects will be corrected;
- that there are no viruses or other harmful components;
- that the security methods employed will be sufficient;
- regarding correctness, accuracy, or reliability.
8.3 All warranties, representations, conditions and all other terms of any kind whatsoever
implied by statute or common law are excluded from this Agreement to the fullest extent
permitted by applicable law.
8.4 Nothing in this Agreement excludes the liability of NTC:
- for death or personal injury caused by NTC's negligence;
- for fraud or fraudulent misrepresentation; or
- any statutory liability not capable of limitation.
8.5 Subject to clause 8.5, NTC will not be liable whether in tort (including for negligence or
breach of statutory duty), contract, misrepresentation (whether innocent or negligent),
restitution or otherwise for any loss of profits, loss of business, depletion of goodwill and/or
similar losses or loss or corruption of data or information, or pure economic loss, or for any
special, indirect or consequential loss costs, damages, charges or expenses however arising
under this Agreement.
8.6 Subject to clause 8.5, NTC's total aggregate liability in contract, tort (including negligence
or breach of statutory duty), misrepresentation (whether innocent or negligent), restitution or
otherwise, arising in connection with the performance or contemplated performance of this
Agreement will be limited to Euro 500.
9.1 This Agreement will commence on the Effective Date and will continue for indefinitely,
unless otherwise terminated as provided in this clause 9.
9.2 This Agreement can be terminated by either party giving the other one month's written
9.3 Any termination is without prejudice to either party's accrued rights or remedies.
9.4 On termination of this Agreement for any reason all revocable licences granted under this
Agreement will immediately terminate.
9.5 The accrued rights and remedies of the parties, and clauses 7 & 8, will survive termination
of this Agreement for any reason.
No party will be in breach of this Agreement nor liable for any failure to perform its
obligations under this Agreement, if that failure results from circumstances beyond its
A waiver of any right under this Agreement is only effective if it is in writing.
If any provision (or part of a provision) of this Agreement is found to be invalid,
unenforceable or illegal, the other provisions (or parts of any provisions) will remain in force.
This Agreement constitutes the whole agreement between the parties and supersedes any
previous agreement between them.
The Customer will not assign, transfer, charge, sub-contract or deal in any other manner with
all or any of its rights or obligations under this Agreement, without the prior written consent
This Agreement does not confer any rights on any person or party other than the parties to this
16.1 Any notice required to be given under this Agreement will be in writing and will be sent
by email to:
- the Customer's email address set out on the Order Form;
- for NTC at 11 ion Campineanu, Et.4, Sector 1, Bucharest, Romania
16.2 Notices will be deemed to have been received at the time of transmission as shown by
the sender's records (or if sent outside business hours, at 9 am on the first Business Day
This Agreement will be governed by, and construed in accordance with, the laws of romania
and the parties irrevocably submit to the exclusive jurisdiction of the Romanian Courts.
Questions about the Terms of Service should be sent to us by following this link.