"Agreement" means the main body of this ESIMGO Master Services Agreement together with any Schedules, any Statement of Work and addenda (as amended from time to time by the agreement of the parties);
"Charges" means the sums charged to the Customer by ESIMGO for the provision and use of a Service;
"Contract" means an agreement made between the Customer and ESIMGO for the provision of a particular Service, which shall be subject to the provisions of this Agreement and any permitted amendments, variations or additions to any of the foregoing;
“Credit Rating” means the score given to the creditworthiness of the Customer or ESIMGO by Dun and Bradstreet, Equifax, Experian or Creditsafe, or other third party agency that ESIMGO appoints in its sole discretion, that performs a materially similar function, from time to time;
"Data" shall be represented in Gigabytes and calculable by up to, two decimal places. One Gigabyte shall be defined as 1,000,000,000 Bytes.
"Data Protection Legislation" means the Data Protection Act 2018 and the Privacy and Electronic Communications Regulations 1998 or their successors or any legislation in substantially the same terms in any jurisdiction in or into which ESIMGO is providing the Services or processing Personal Data;
“eSIM Profile” means the profile supplied by ESIMGO for the purposes of using Mobile Data on a compatible mobile handset, tablet or laptop;
“ESIMGo API” means the mechanism by which the management and control of eSIM Profiles between Customer’s Network and the ESIMGO Network;
“IMSI Profile” means the unique International Mobile Subscriber Identity number used to identify the eSIM Profile;
“IMSI Profile Suppliers” means a mobile Network connected to ESIMGO’s network which is relied upon for the provision of the Services;
“Interconnection Suppliers” means a Network connected to ESIMGO’s Network which is relied upon for the provision of the Services;
“Mobile Data” means GPRS, 3G, HSDPA, LTE, LTE+ and 5G mobile carrier network access providing access to the internet over mobile SS7 signaling;
"Network" means an electronic communications network as defined in the Act;
“Ofcom” means the Office of Communications;
“Parties” means the Customer and ESIMGO;
“Party” means either the Customer or ESIMGO;
"Personal Data" and the processing thereof shall have the meaning given to them of the relevant Data Protection Legislation;
"Rates" are the applicable rates provided by ESIMGO as set out in the Schedules or as otherwise set out in any price lists or rate sheets notified to the Customer as may be amended from time to time in accordance with this Agreement;
"Service(s)" means any service provided under this Agreement and any ESIMGO services as more particularly described in any relevant Statement of Work or Schedule and provided to the Customer by ESIMGO, or any other service that ESIMGO is able and willing to provide to the Customer as agreed by the Customer, which shall in each case be governed by this Agreement;
"SS7” means the telecommunications signalling capacity between telecommunications apparatus using Signalling System Number 7, as specified by the International Telecommunications Union Telecommunications Standardisation Sector.
"Statement of Work" means a document identified as being a statement of work for the provision of Services, containing a detailed description of the Services to be provided, which in each case shall automatically incorporate and be subject to this Agreement unless expressly stated to the contrary;
“VAT” means Value Added Tax (or its equivalent in other jurisdictions); and
“Working Day” means any day that is not a bank holiday in England, nor a Saturday nor a Sunday.
2.1. The Schedules form part of this agreement and have the same force and effect as if the provisions thereof were set out in the body of this Agreement, but in the event of an inconsistency in the case of a particular Contract between the provisions of this Agreement, an applicable Statement of Work, and/or any additional terms in a relevant Schedule, the following order of precedence will apply:
(i) the applicable Statement of Work;
(ii) the terms of any other Schedule(s); and
(iii) the terms of the main body of this Agreement.
3.1. ESIMGO shall use reasonable endeavours to provide the Services to the Customer and support the Services in accordance with Schedule 1 of this Agreement. 3.2. The Customer undertakes to ESIMGO to only use the services in accordance with any lawful direction, consent, specification, designation or - determination made by ofcom or any other regulatory or legal authority.
3.3. The Customer will ensure that it, and (where appropriate) will use reasonable endeavours to ensure that its customers will:
3.3.1. not use the Services for any improper or unlawful purposes nor allow others to do so;
3.3.2. comply with any reasonable instructions issued by ESIMGO in respect of use of the Services (including adherence to any fair use or acceptable use policies published from time to time);
3.3.3. hold at all relevant times appropriate licences or authorisations to run any telecommunications systems and equipment which are to be used in the provision or use of the services; and
3.3.4. ensure that the provision or use of the Services will not lead to any breach of the provisions of any telecommunications licence or authorisation held by ESIMGO.
3.4. ESIMGO shall use reasonable endeavours to give the customer the following notice in respect of any outage of the relevant Network which may affect the performance of any obligations under this Agreement:
3.5. In the event of any planned or unplanned outage ESIMGO shall use all reasonable endeavours to correct any faults and resume normal service as soon as is reasonably possible.
3.6. ESIMGO reserves the right to modify individual network coverage included within the Services at its discretion. ESIMGO will use reasonable endeavours to (but does not warrant that it shall) provide the Customer with a minimum of 7 calendar days’ notice of a change in coverage and will only do so where reasonably necessary as a consequence of a technical or commercial issue.
3.7. ESIMGO shall not be liable for any failure to maintain the services and ESIMGO does not warrant, represent or undertake that ESIMGO’s network or the network of any of ESIMGO’s IMSI Profile suppliers or any of ESIMGO’s Interconnection Suppliers will be fault free or free of interruptions.
3.8. ESIMGO and the Customer shall use reasonable endeavours to ensure that the ESIMGO API conforms to the specifications published by ESIMGO from time to time at http://www.esim-go.com
4.1. The default basis by which ESIMGO shall provide services in on the pre-paid basis pursuant to Clause 5 of this Agreement unless agreed otherwise by ESIMGO in writing.
4.2. The Customer may apply to ESIMGO for a credit limit and payment terms (a “post-paid basis”), which ESIMGO may implement at its sole discretion. In making such an application, the Customer shall provide:
4.3. ESIMGO may reduce or revoke a credit limit at any time, for any reason, at its sole discretion. Such reasons include, but are not limited to:
4.4. ESIMGO shall raise an invoice for the Services rendered in connection with this Agreement, according to the payment terms and invoice frequency agreed in writing with the Customer, which the Customer shall pay no later than the date shown.
4.5. In consideration of providing the Services on a post-paid basis, ESIMGO may require the Customer to pay a deposit. Such deposit shall be calculated by ESIMGO at its sole discretion and shall be paid by the Customer prior to the provision of any Services on a post-paid basis.
4.6. The Customer shall, upon request by ESIMGO, where the Customer’s consumption of the Services not yet paid for (i.e. unbilled and billed but not yet paid) (the “Outstanding Balance”) exceeds the credit limit or deposit, make a further payment to ESIMGO to reduce the Outstanding Balance below the credit limit or deposit.
4.7. Notwithstanding any other rights ESIMGO has pursuant to this Agreement, ESIMGO may suspend the Services without notice if the Outstanding Balance exceeds the credit limit or deposit at its sole discretion.
4.8. Any deposit received in connection with this Agreement may be used by ESIMGO to offset any undisputed amounts owing by the Customer. Upon termination of this Agreement, any deposit shall be returned (net of any offset pursuant to this clause 4.8) no later than sixty (60) calendar days from the date of termination.
5.1. The customer shall prepay ESIMGO for Services rendered in connection with this Agreement.
5.2. Prior to the commencement of the Services, the Customer shall deposit in an account indicated by ESIMGO the amount of funds for the Services as ordered by the Customer
5.3. The Customer should maintain a positive balance of funds in its account. The Customer shall make additional pre-payments in immediately available funds as required by ESIMGO to ensure that sufficient funds are held to cover usage of the Services.
5.4. It is the responsibility of the Customer to ensure sufficient funds remain available on the account. Services will only be provided to the customer upon confirmation of cleared funds being received in the pre-payment account. Any funds deposited other than between 9 am and 5 pm on a Working Day will be added to the pre- payment account on the next following Working Day.
5.5. Charges for the Services shall be calculated in accordance with the applicable Rates.
5.6. Any funds prepaid by the Customer but unused after termination of this agreement shall remain the property of ESIMGO and shall not be refundable by ESIMGO to the Customer.
5.7. Where VAT is applicable, the invoice will be in respect of the gross payment received and that amount net of the VAT charged will be credited to the pre-payment account.
5.8. Any fraud, artificial inflation of traffic, data arbitrage or other improper use of the services committed by the customer, its customers or by any third party (whether or not that third party’s access to the Services was authorised or not) shall not relieve the customer of its payment obligations to ESIMGO under this agreement.
5.9. The Customer acknowledges that there may be a delay in their usage of the Services debiting their prepayment funds and that the Customer may have a negative balance.
5.10. For security purposes the “auto top-up” feature will only be functional with cards that do not bypass 3D secure payment verification.
6.1. Each Party shall pay the Charges in respect of the Services.
6.2. The Charges are based on the Rates and unless otherwise stated in any Schedule, may be subsequently increased as notified in writing on 7 calendar days’ notice and reduced immediately on notice, shall be deemed to be incorporated in this agreement.
6.3. The Customer will pay the Charges due within 7 calendar days from the date of invoice, unless otherwise agreed in writing by the Parties.
6.4. Without prejudice to any other rights under this Agreement if the Customer fails to pay the Charges, save in the case of disputed amounts, ESIMGO shall be entitled to charge interest on the outstanding amount at a rate of the Bank of England base rate plus eight percent (8%) per annum (calculated and due pro-rata daily) from the date on which such amount becomes due until the date on which it is paid.
6.5. VAT may be applicable and will be added to the invoice at the relevant United Kingdom rate. In the event VAT is not payable now but becomes payable in the future, then the customer shall be responsible for the payment of any applicable VAT and agrees to indemnify ESIMGO in respect of any taxes payable in respect of the services.
6.6. Failure to dispute any Charges within the earlier of (i) 14 calendar days of the date of the invoice or (ii) the date at which the Charges were debited from any prepaid funds, will create an irrefutable presumption of the correctness of the Charges, absent manifest error, and that the customer shall have waived its right to dispute those Charges.
6.7. Without prejudice to any of its other rights under this Agreement or in law, ESIMGO may immediately suspend the provision of the services, without notice, during any period in which any undisputed amounts owing to it remain unpaid.
7.1. Any dispute raised by the Customer in relation to the Charges must be made in writing with sufficient detail for ESIMGO to verify the accuracy of the Customer’s dispute (a “Dispute Notice”).
7.2. Any dispute must only relate to (i) the Rates or (ii) the volume of Services provided.
7.3. A dispute under clause 6.2 of this Agreement shall only be valid to the extent it does not relate to the artificial inflation of traffic, fraud, any technical issue, defect or service quality issue (including the absence of service), or any other matter.
7.4. Within 5 calendar days (or longer period as notified by ESIMGO to the Customer at its sole discretion, acting reasonably) after receiving notice of a dispute, ESIMGO shall give the Customer access to whatever additional documents or materials the customer may reasonably require to verify the disputed amount. The parties will exercise reasonable, good faith efforts to resolve the payment dispute within 5 calendar days thereafter.
7.5. Failing this, either Party shall be entitled to commence court proceedings without further notice on the other.
7.6. The Customer shall not be entitled to withhold any monies due to ESIMGO during the resolution of a dispute under this clause 6, however, the Customer may request (acting reasonably) that the disputed sums are held in escrow or trust pending the resolution of the dispute.
8.1. Subject to clause 7.4 and 7.6 each Party shall be liable for any direct loss arising from breach of this Agreement and/or negligence hereunder.
8.2. Neither party’s liability is excluded for death or personal injury resulting from its negligence, for fraudulent misrepresentation or in relation to any other liability that may not be excluded by applicable law.
8.3. Neither party shall be liable to the other Party under or in relation to this Agreement or its subject matter (whether such liability arises due to negligence, breach of contract, misrepresentation or for any other reason) for any:
8.4. For the purposes of this clause 7 the term "loss" includes a partial loss or reduction in value as well as a complete or total loss.
8.5. Subject to clause 7.2, the maximum aggregate liability of each party under this agreement in respect of any causes of action which arise during any year during the term of this Agreement (a year being twelve months from the date hereof and from each anniversary thereafter) shall be limited to £10,000.
8.6. The provisions of this clause 7 shall continue to apply notwithstanding termination of this Agreement for any reason whatsoever in matters relating to this Agreement.
8.7. The Parties acknowledge and affirm that the limitations on liability set out in this clause 7 have been negotiated between the parties and are regarded by the Parties as being reasonable in all the circumstances.
9.1. Each party hereby represents and warrants that it holds all necessary licences, consents and permissions as may be necessary to fulfil its obligations hereunder and shall comply with all laws, guidelines or codes of any governmental authority.
9.2. Except as specifically provided in this Agreement, neither Party makes any warranty to the other or any other person or entity, whether express or implied or statutory, as to the description, quality, merchantability, completeness or fitness for a particular use or purpose of any of the Services provided under this Agreement, or as to any other matter, all such warranties hereby being expressly excluded and disclaimed to the fullest extent permitted by applicable law.
9.3. Nothing herein contained shall be construed or have effect as constituting any joint venture, partnership or relationship of employer or employee or principal and agent between the Parties. Accordingly, each Party represents, warrants and undertakes to the other Party that neither it nor any of its employees, officers or other personnel shall, or shall purport to be able to, bind the other party to third Parties in any manner whatsoever or to incur liabilities on the other Party's behalf.
10.1. This agreement shall continue in force until the expiry or termination of all the Schedules or Statements of Work entered into under this Agreement.
10.2. Unless specified otherwise or terminated in accordance with this Agreement, each Schedule or Statement of Work shall continue until unless and until terminated by either Party giving to the other at least ninety (90) calendar days’ notice in writing subject to any applicable minimum renewal term set out in a Schedule; in each case to come into effect at the end of any calendar month.
11.1. Either Party may terminate this Agreement at any time by giving to the other party written notice where:
11.2. ESIMGO may terminate this Agreement at any time by giving to the other Party written notice where:
11.3. ESIMGO may suspend its performance of this Agreement at any time by giving to the other Party written notice where:
12.1. Notwithstanding any other provision of this Agreement, neither Party (the "Affected Party") shall be liable for its inability to perform any of its obligations hereunder (other than an obligation to make payment) if such inability is caused by or arises as a result of circumstances beyond the reasonable control of the relevant Party including but not limited to inability or delay caused through fire, flood, riot, act of god, lightning, explosion, civil commotion (but not industrial dispute), malicious damage, storm, tempest, act of government or regulatory authority, any form of technical or other failure associated with ESIMGO’s network or the network of any of ESIMGO’s IMSI Profile suppliers or Interconnection Suppliers ("Force Majeure Circumstances").
12.2. If this Agreement cannot be performed according to its terms for a continuous period of more than 60 calendar days as a result of Force Majeure circumstances, then the unaffected Party may, after the expiry of such period at its discretion, but only while such force majeure circumstances continue, to terminate this agreement by giving not less than 30 calendar days’ notice to the affected Party. Such notice shall be void if, prior to its expiry, the Force Majeure Circumstances come to an end.
13.1. In the event of termination of this Agreement, all fees due to the other Party remain obligated.
13.2. Clauses 7 and 14 shall survive the termination of this Agreement.
14.1. Each Party undertakes to the other to supply promptly all information and assistance, which the other may request that is reasonably require to enable it to perform its obligations under this Agreement.
15.1. Each party shall ensure that disclosure of confidential information is restricted to the Parties and their employees, or contractors and/or associated companies who need access to the confidential information for the purposes of this Agreement. Copies or reproductions of any confidential information shall not be made except to the extent reasonably necessary for the purposes of this Agreement and all copies made shall remain the property of the disclosing party. A Party shall return all confidential information and any copies to the disclosing Party within 30 calendar days of receipt of a written request to do so.
15.2. In this clause "confidential information" shall mean product, business, technical, market, strategic or other information or data (including but not limited to information retained on all types of medium including written, diagrammatical, software or other storage medium) relating to the provision of the services or this agreement or the business or affairs of ESIMGO disclosed whether in writing, orally or by any other means, and whether or not that information is marked "confidential" excluding any information which:
15.3. The following disclosures of information by either Party shall not constitute a breach of clause 14:
15.4. The confidentiality obligations in this clause 14 shall survive the termination of this Agreement for a period of 3 years and shall supersede all previous confidentiality agreements between the Parties.
16.1. The Parties agree the following:
17.1. The Parties shall take all necessary steps to ensure that any Personal Data or information provided by the other shall be secure and treated as confidential and in particular a party shall not:
17.2. Nothing in this agreement shall relieve either party of its obligations under the Data Protection Legislation.
17.3 The customer warrants that it has the relevant authority from the subject of any Personal Data and hereby authorises ESIMGO to;
18.1. Subject to clause 15.1, each Party agrees that, without the other Party’s written consent, it will not use the name, service marks, trademarks or any other symbol or logo used by or belonging to the other Party in connection with their businesses or in any advertising, publicity releases or sales presentations. Each Party agrees it will not take any actions that will in any manner compromise the registered trademarks and/or service marks of the other Party or a member of the same group. The Parties agree that any violation of this section would cause irreparable harm and that such harm cannot be adequately compensated in money damages. Accordingly, any such violation or breach may be enjoined by any court of competent jurisdiction, without waiving or affecting claims for damages incurred in connection with such violation.
18.2. Each Party agrees that it shall not cause, directly or indirectly, any claim or encumbrance to attach to any intellectual property owned by the other Party, including, but not limited to trade secrets, patents, copyrights, and confidential information. Any act purporting to create such a claim, lien or encumbrance on such items shall be void. The parties further agree that, except as otherwise explicitly allowed by law, they shall not directly or indirectly through third parties, copy, reverse engineer, or otherwise misappropriate any part of the intellectual property owned by the other Party, or distribute or transfer the intellectual property of the other Party to any person except as provided herein. The Parties agree that any violation of this section would cause irreparable harm and that such harm cannot be adequately compensated in money damages. Accordingly, any such violation or breach may be enjoined by any court of competent jurisdiction, without waiving or affecting claims for damages incurred in connection with such violation.
18.3. For clarification, all ESIMGO information, including but not limited to, logos, images, documents, source code, know how, systems, solutions, information, and data belongs exclusively to or is licenced through ESIMGO.
19.1. No failure or delay by either Party in exercising any right, power or privilege hereunder shall impair the same or operate as a waiver thereof nor shall any single or partial exercise of any right, power or privilege preclude any further exercise thereof or the exercise of any other right, power or privilege. The rights and remedies herein provided are cumulative and not exclusive of any rights and remedies provided by law or in equity.
19.2. The address for the receipt of notices for ESIMGO is its registered office. The Customer’s address for the receipt of notices is the address provided by the Customer on the acceptance of this Agreement.
19.3. Any notice given in connection with this Agreement shall be served in writing by hand, normal first class post, fax or electronic transmission. Any notice sent by:
19.4. A third party which 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.
19.5. Either Party may assign this Agreement (providing it notifies the other party in writing) to any other company (with equal or superior Credit Rating) within its group of companies without consent. Assignment to any third party requires the other Party’s consent, and such consent shall not be unreasonably withheld.
19.6. ESIMGO may vary this Agreement:
20.1. Save as otherwise agreed by the parties this Agreement, including any Schedules, exhibits, appendices and annexes attached to it, sets out the entire agreement and understanding of the Parties and supersedes any and all prior proposals, negotiations, representations, agreements, arrangements or understandings, both oral and written, relating to the subject matter hereof.
20.2. Save as otherwise agreed by the parties the parties have not relied on any proposal, negotiation or representation, whether written or oral, that is not expressly set out.
21.1. This Agreement shall be construed in accordance with, and governed in all respects by English law and the Parties submit to the exclusive jurisdiction of the English courts in respect of any legal proceedings which may arise in any way whatsoever out of this Agreement.
1.1 In this Schedule: “Contact Sheet” means the document completed by the Parties which details the contact information for individuals or teams responsible for various functions within their respective Party, for example, but not limited to, first-line support, billing, accounts payable, second-line support, escalations etc which is updated by the Parties from time to time.
“Cosmetic” means a fault or issue that has no substantive effect on the functioning of the Service;
“Elapsed Time” means the time that has elapsed between the Support Request and the Support Resolution, less any time where ESIM Go was waiting on the Customer or a third-party, to provide additional information, or, as appropriate, a consequential fault diagnosis or resolution.
“Non-urgent” means a fault or degradation to part of a Service that does not render the entire service unusable;
“Support Request” means the point in time at which one Party notifies the other of an actual or potential fault in the Services;
“Support Resolution” means the point in time at which, in its sole discretion, ESIM Go reasonably believes that the issue described in the Support Request has been resolved.
“Urgent” means a fault that causes material degradation to or a failure of the entire Service or a core component of a Service such as to have the effect of rendering the service substantively unusable;
“Working Hour” means one hour of time between 0900 and 1730 (using the time in London, United Kingdom) on a Working Day.
1.2. Unless defined to the contrary in this Schedule, capitalised terms herein shall have the same meaning as in the Master Services Agreement.
2.1. The Customer shall use reasonable endeavours to;
2.2. The Parties agree to use reasonable endeavours to keep the Contact Sheet up to date with any changes in personnel or means by which one Party should contact the other.
2.3. ESIM Go shall not be liable for any failure on its part to respond to a Support Request or generate a Support Resolution within the timescales in this Clause 2 nor for a failure to follow the Contact Sheet in performing its duties under this Agreement.
2.4. ESIM Go shall use reasonable endeavours to acknowledge a Support Request:
2.5 ESIM Go shall use reasonable endeavours to generate a Support Resolution;
2.6 ESIM Go may vary the timescales in Clause 2.4 and 2.5 on a temporary basis by written notification (which shall be sent no later than seven (7) calendar days prior to the temporary timescale coming into effect) to the Customer to cater for reasonable seasonal reductions (for example, but not limited to, change freezes at Christmas) in ESIM Go’s general capacity to achieve the timescales in question.
2.7 Where a Support Request is not Urgent, Non-urgent or Cosmetic, for example, but not limited to, a user training request, or a new feature request, ESIM Go provides no indication of the timescales to acknowledge or provide a Support Resolution.