ONOFF BUSINESS GENERAL TERMS AND CONDITIONS OF SALE (October 2023 - France)
ARTICLE 1 - SCOPE
The purpose of these general terms and conditions of sale is to define the rights, obligations and payment terms applicable to any purchase, order or download of the Application, mobile Numbers, Services and Credits (hereinafter the “Order” or “Order Form”), from ONOFF TELECOM, a simplified joint stock company, registered with the Paris Trade and Companies Register under number 832 235 253, having its registered office at 26 boulevard de Bonne Nouvelle, 75010, Paris, France (hereinafter “ONOFF TELECOM” or “ONOFF”).
Placing an Order with ONOFF TELECOM (or with any of its subsidiaries), or downloading the Application from a Store or using the WebApp, implies that the Client has accepted in full and without reservation, the entirety of these General Terms and Conditions of Sale (hereinafter the “GTCS” or the “GTC”), as well as the General Conditions of Use, notwithstanding any stipulations to the contrary that may appear on the Order or the General Terms and Conditions of Use. Acceptance of any special conditions shall not entail waiver of these GTCS.
ARTICLE 2 - DEFINITIONS
The following terms have the following meaning:
Application: refers to any application (including the software known as ONOFF Business), developed and operated by ONOFF TELECOM, which can be downloaded from a Store, and which enables the User to benefit from the Services. The term Application also refers to the solution allowing the use of Numbers through applications which are third parties proprietary applications (Microsoft Teams or Zoom for instance).
Company Account: refers to the account created by the Company in order to specify its Users and, for each of them, the type of Services from which they should benefit.
Contractual Documents: means any document referring to these GTC, the TOU, the Personal Data Protection Policy, as well as any program, appendix, rider, quotation, Order Form, additional or special conditions attached to or referred to therein, and together referred to as the “Contract”.
General Conditions of Use or “GCU”: refers to the general conditions of use available on the Website, accessible at the following address: https://www.onoffbusiness.com/en/terms-conditions, and governing, together with the Personal Data Protection Policy and the Tariff Schedule, the contractual relations relating to the provision of all services to the Company by ONOFF TELECOM.
General Terms and Conditions of Sale or “GTCS” or “GTC”: refers to this general terms and conditions of sale, available on the Website, and governing, together with the Personal Data Protection Policy and the Tariff Schedule, the contractual relations relating to the provision of all services to the Company by ONOFF TELECOM.
Intellectual Property Rights or Intellectual Property: (i) copyright, rights registrable as copyright, patents, software rights, database rights, industrial property rights (patents, trademarks, designs), trade names, know-how, domain names, trade secrets and confidential information (whether or not registered); (ii) applications for registration and the right to apply for registration of each of the rights referred to in (i) above; and (iii) all other intellectual property rights, or arrangements for equivalent or similar protection, existing throughout the world.
Management Console: refers to the tools made available to the Company, via the Website, and enabling a Company to (i) create the Company Account, (ii) list all the Users likely to benefit from the Services, (iii) give them effective access to the Services concerned and (iv) subsequently manage the access of these Users to the Services.
Manager: refers to a User who has administration rights for the Company Account and access rights to the Management Console.
Numbers: The mobile telephone number(s) in the national numbering plan assigned to one or more Users by means of the Management Console.
ONOFF Credits: refers to credits used to purchase Services, in particular to make telephone calls and/or send SMS and MMS messages internationally or to special numbers.
Operator Subscription: refers to the contract for mobile telephony and mobile broadband Internet services subscribed by the User or by the Company with a third-part operator prior to using the Services and independently from ONOFF TELECOM.
Order or Purchase Order: The irrevocable undertaking by the Company, subject to these GTCS, to subscribe to a Licence, and purchase Numbers or Services from ONOFF TELECOM, by writing, signature of a purchase order, signature of a quotation with approval or, for purchases made exclusively online: electronically in accordance with article 1127-2 of the Civil Code.
Personal Data Protection Policy: refers to the personal data protection policy defined by ONOFF TELECOM and available at https://www.onoffbusiness.com/en/privacy-policy/
Price List: refers to the price list applicable to the Services and available at https://onoffbusiness.com/tarifs.
Store: integrated platform for online distribution of application(s) intended for devices such as smartphones, computers or televisions, accessible via the Internet from a compatible operating system and enabling applications to be downloaded for a fee or free of charge.
Territory: The countr(y)(ies) in which the Company or the User usually or temporarily resides, or in which they can justify stable links involving a frequent and significant presence.
User Account: refers to the User account created by the Manager, enabling the employee (“Employee”) to use the Application.
WebApp: The ONOFF TELECOM solution offered in the form of an application hosted on a server and accessible in Saas mode (“software as a service”) via a web browser, without a User needing to download and/or install the Application on a device. The WebApp is subject to the same legal regime as the Application under the GTC.
Website: refers to the Internet site accessible at the address onoffbusiness.com, operated by ONOFF TELECOM.
ARTICLE 3 – LICENCE
The Licence implies the placing of an Order and consequently the irrevocable commitment of the Company to take out a subscription, Numbers or Services with ONOFF TELECOM, for the period set out in article 6.1 of the GTC.
ARTICLE 3.2. RESTRICTIONS : Except with the express written agreement of ONOFF TELECOM, the Company undertakes not to i) grant the Licence to Use, sell, assign, rent, export, import, distribute or transfer or grant rights to a third party over the Application ; ii) in any way whatsoever, modify, alter, attempt to alter, delete, copy, decompile, reverse engineer or disassemble all or part of the elements and protocols making up the Application and the WebApp (hereinafter the “Elements”) or alter or attempt to alter their functionality, integrity or availability, or attempt to derive the source code, or create works derived from all or part of the Application or its updates; The Elements include in particular any data and/or database, data model, documentation, software, source code, object code, tools, algorithms, user interface design, methodology, concepts and any other element belonging to or licensed to ONOFF TELECOM in connection with the Application; iii) directly or indirectly, create a derivative work, search the source code or protocols of the software of the Application (except to the extent permitted by law); iv) delete, mask or modify the mentions of trademark rights or other mentions of ownership included in the Application.
Any of the above actions will be considered as a violation of ONOFF TELECOM’s rights. Any non-compliant use of the Application may result in legal proceedings.
In addition, the Company must comply with all the restrictions on use of the Application set out in the General Terms and Conditions of Use, in particular the fact that any Number may only be used as a “secondary number” for the provision of telephone services or SMS or MMS messaging services, and that the Number may only be assigned to a User who usually or temporarily resides, or can prove stable links involving a frequent and significant presence, in the Territory corresponding to this Number.
ARTICLE 3.3. OPERATOR SUBSCRIPTION: In order to use the Application, the User or the Company must first subscribe – at their own expense and under their sole responsibility – to an Operator Subscription plan which includes (i) the possibility of making and receiving telephone calls and/or SMS messages and (ii) mobile broadband Internet access. In the event that the User takes out an Operator Subscription plan, it is agreed that the Company will be responsible for ensuring that the User subscribes and maintains the Operator Subscription plan for the duration of the Contract. The User must be equipped with a terminal that allows the Application to be used (Smartphone, PDA, tablet or equivalent) and with a recent version of the operating system that is regularly updated. The User or Company is solely responsible for the proper functioning of its terminals and the operating systems used. ONOFF TELECOM cannot be held responsible for any failure of the telephone network which belongs to the Operator nor for its negative consequences on the use of the Application, Numbers or Services.
ARTICLE 4. INTELLECTUAL AND INDUSTRIAL PROPERTY RIGHTS
ONOFF offers an innovative technology that enables secondary telephone numbers to be obtained directly from the cloud via an Application or a WebApp.
The Application and the WebApp contain exclusive and confidential information protected by intellectual property laws and treaties. ONOFF TELECOM is the owner or exclusive beneficiary of all the Intellectual Property Rights defined herein. The Licence does not transfer any Intellectual Property Rights over all or part of the Application. Thus, ONOFF TELECOM retains exclusive ownership of the Application and the Company and/or the User shall refrain, directly, indirectly or through third parties, from infringing, jeopardising or limiting, by any means whatsoever, the Intellectual Property Rights held by ONOFF TELECOM over the Application. Similarly, any reproduction, representation, adaptation, modification, translation, transformation, distribution, integration into other material, commercial or non-commercial exploitation and/or re-use in any way whatsoever of all or part of the Elements making up the Application is strictly prohibited. ONOFF TELECOM does not grant any Intellectual Property Rights attached to the Application other than those explicitly mentioned within the Documents.
The Company may not remove, alter, modify or degrade any confidentiality, copyright or other proprietary notices contained, affixed, encoded or recorded on an ONOFF Element or Intellectual Property or fail to protect or indicate any copyright or other proprietary notice relating to an Element or Intellectual Property Right. More generally, the User undertakes to respect all of ONOFF TELECOM’s Intellectual Property Rights, of which he declares that he is fully aware, and undertakes not to undermine ONOFF TELECOM’s brand or image.
ARTICLE 5 PAYMENT - FINANCIAL CONDITIONS
Unless specific conditions apply to certain categories of customers, the following prices and payment conditions apply without reservation.
5.1 PRICES AND FEES: Subscription to each Number is subject to payment of a fixed price which varies according to the type of features and calling time included (the “Call Plans”). This payment is made at the beginning of the period, either monthly or annually, depending on the choice made at the time of subscription. All prices applicable to the Licence as well as to the Services and Numbers, Call Plans and ONOFF Credits are mentioned, regularly updated and available at the following address: https://www.onoffbusiness.com/fr/offres/.
The Services provided to Users by ONOFF TELECOM are invoiced to the Company in accordance with the prices in force on the day of subscription to the Service concerned. The Company declares that it has duly examined and approved them on the day of subscription to the Licence.
Subscription to each Number is subject to payment of a fixed price which may vary according to the Call Plan, the category, the date, the subscription period for the said Number, the quantity of subscribed Numbers and the chosen payment frequency.
Any general reduction in price may be implemented by ONOFF TELECOM without any particular notice. This price reduction will not affect the prices of the Call Plans subscribed to by the Company at that time.
In addition, ONOFF TELECOM may review and increase its tariffs and prices once a year, in line with the inflation, in particular the consumer price index. The Company is informed by any means, one month before the new prices come into force.
Upward changes in the prices for Services and Credits, regardless of the cause, apply automatically and without the need of a court’ decision, to any current Licence. Upward modifications to the prices applicable to Call Plans, linked to the consumer price index, apply automatically and ipso jure to the current Licence.
When a special discount has been granted when subscribing to a Licence, ONOFF TELECOM reserves the right to no longer apply the initial discount to the new tariff(s).
ONOFF TELECOM makes its best efforts to keep the applicable prices unchanged within the framework of a current Licence. Nevertheless, ONOFF TELECOM sometimes depends on external service providers for the pricing of certain Services. Therefore, in the event of an upward modification to the price applicable after subscription to a Call Plan, ONOFF will inform the Company at least one (1) month before the modified price comes into force, by any means including by email or “pop-up” (secondary browser window displayed as an overlay) appearing within the application, the Management Console or the WebApp. In this case, the Company may terminate the Licence by registered letter with acknowledgement of receipt at least ten (10) calendar days before the modified price comes into effect. Failing this, ONOFF may automatically apply the new prices. This option of early termination of the Licence only applies to Call Plans price increases not linked to the price index (i.e. the inflation).
The subscription to a Licence for a period will be automatically renewed and without the need of a court’ decision, for the same period at the end of each subscription period, for all Users, unless expressly terminated in accordance with the terms and conditions set out in article 6 of the GTC. The renewal of the Licence shall automatically entail the renewal of all subscriptions, Numbers and Services, Call Plans, for all Users, as well as the invoicing of the corresponding amounts on the due dates, taking into account any price increases that may have occurred. In the event that ONOFF TELECOM has granted discounts to the Company during the initial term of the Licence, the said discounts will not automatically apply at the time of renewal.
5.2 PAYMENT: The Company will pay the Licence in advance, monthly or annually according to the chosen plan, including the Call Plans corresponding to the Numbers and all the subscribed Services. For certain Services that depend on the frequency and level of their use, payment may be made after calculation and adjustment by ONOFF TELECOM at the end of the monthly period. To this end, the Company must ensure that, at all times, its Company Account references one or more valid means of payment among those accepted for payment by ONOFF TELECOM. Any purchase or renewal of a Licence will be the subject of an invoice in electronic format made available to the Company via the Management Console.
ONOFF shall make available to the Customer, using the current existing technology and for a period of twelve (12) months following the date on which the invoice sent by ONOFF to the Customer was drawn up, the statement of communications and all information on the services invoiced under the GTC.
The Company will have six (6) weeks following the invoice date, to dispute the sums invoiced to it by providing all the necessary justification. After this period, the Company may no longer dispute the invoice or request any reimbursement. Contesting the invoice and any other complaints do not exempt the Company from paying each due date installment.
In the event of disagreement on the amount of a payment, this payment shall be made on the provisional basis of the sums accepted and established by ONOFF TELECOM. The sums that will be owed to ONOFF TELECOM by virtue of the commercial relationship including these GTC will not be compensable in due proportion with any other sums or debts that ONOFF TELECOM may owe to the Company.
ONOFF TELECOM reserves the right to refuse any request for reimbursement if it considers (i) that the Company’s request is groundless or (ii) that the Company has not complied with any of its obligations under these GTC or one of the Contractual Documents.
Any reduction in the disputed invoice that is ultimately accepted by ONOFF TELECOM will give rise to the issue of a credit note to be deducted from the following invoice.
Pursuant to Article L. 34-2 of the French Post and Electronic Communications Code, the statute of limitations shall apply to all claims for restitution of the price of electronic communications services submitted by the Company after a period of one year from the date of payment.
5.3 CONSEQUENCES OF DEFAULT OF PAYMENT: Failure by the Company to pay an invoice on the due date shall automatically and without formality entail :
– in accordance with the provisions of Article L. 441-1 of the French Commercial Code, the invoicing of late payment penalties, the amount of which shall be calculated on the amount, including all taxes, of the due invoice, being specified that the price of these late payment penalties shall be (i) due by the Company by the sole fact of the due date on the contractual term, (ii) due by the Company notwithstanding any additional damages that ONOFF TELECOM may claim as a result of the said non-payment, and (iii) equal to the interest rate applied by the European Central Bank to its most recent refinancing operation plus 10 percentage points, under the conditions defined in article L. 441-6 of the French Commercial Code. However, this interest rate may not be less than three times the legal interest rate,
– the payment of a fixed recovery indemnity, notwithstanding the absence of a recovery procedure, set at an amount of forty (40.00) euros in application of the provisions of articles L. 441-10 and D. 441-5 of the French Commercial Code. ONOFF TELECOM may request any additional compensation, when the costs it has incurred exceed the amount of the above-mentioned cost (in particular the costs of a lawyer or a debt collection company).
– the cancellation of all discounts, rebates and other advantages granted by ONOFF TELECOM for the benefit of the Company and/or Users.
In addition, non-payment of fees at the due date may result in the suspension of all or part of the services provided by ONOFF TELECOM, in particular the use of Numbers and access to the Management Console. Payment for the Licence, subscriptions, Numbers and Services remains due for the duration of the suspension of services.
In this context, ONOFF TELECOM may also terminate, automatically and without the need of a court’ decision, the Contract after sending a formal notice to pay which has remained unsuccessful for a period of eight (8) days, without, however, waiving all the payments still due under the Licence and up to the Contract expiry date.
In this case, the Company must also reimburse immediately and by and without the need of a court’ decision, all the commercial advantages, discounts, rebates and discounts granted to it during the Contract.
ARTICLE 6 - DURATION - TERMINATION
6.1 TERM: Each Licence will take effect at the latest, on the date of the creation of the Company Account, the creation of a User Account, or the subscription of a Call Plan with a Store or on the Web Site, and will remain in force for minimum periods of one (1) month or one (1) year for offers subscribed for one of these respective periods, under the conditions and at the prices mentioned on the Web Site, or alternatively for the period specified in the Order Form.
Within the scope of a Licence, when the Company allocate new Numbers to its Users, these Numbers and the corresponding Call Plans will follow the duration and term of the Licence and shall not be deleted earlier, unless specifically agreed otherwise by ONOFF TELECOM. The Licence and any associated services (Services, Numbers, subscriptions) will then be automatically renewed by tacit agreement for successive periods of one (1) year (or for the specific period mentioned in the Order Form) unless notice of termination is sent by email with acknowledgement of receipt to the following address: [email protected], notified at least 3 months before the expiry of the current contractual period for commitment periods of one year or more, and at least 10 days before the expiry of the contractual period for commitment periods of one (1) month. Termination of the Licence by the Company implies the end of all rights of use deriving therefrom on the Application, including the use of the Services and Numbers for the Company and its Users. The Company must delete the Application from all hard disks, networks and storage media and destroy all copies in its possession or under its control; ONOFF TELECOM may block access to the User Accounts and/or the Application and delete the data associated with the User Accounts, without notice.
6.2.1 ONOFF TELECOM may terminate the Contract with the Company, at any time and without reason, subject to a minimum notice period of one (1) month before the end of the commitment period for Licences with a commitment of one (1) year or more, and a notice period of 48 hours for Licences with a commitment of one (1) month.
If ONOFF TELECOM decides to no longer offer a particular Service, ONOFF may terminate the said Service without penalty, subject to a minimum notice period of two weeks.
Any termination by ONOFF TELECOM will be notified to the Company by electronic mail (email).
The exercise of this right of termination shall not exempt the Company from fulfilling the obligations of the Contract, until the effective date of termination, including the payment of the Licence and Services.
6.2.2 ONOFF will also be entitled to terminate the Contract for fault or misconduct on the part of the Company after sending an unsuccessful formal notice by email, this termination being solely the result of the Party at fault. It is agreed that the following cases may entitle ONOFF TELECOM to terminate the Contract as of right, as follows:
(i) immediately and without notice, in the event of a breach of a Licence right, an obligation of confidentiality, an Intellectual Property Right, a provision related to the protection of Personal Data, or an obligation of payment by the Company, or in the event of the insolvency of the Company, if ONOFF TELECOM suspects illegal or fraudulent use of the Application, the Numbers, or a use contrary to the rights of third parties or under conditions not provided for in the GCU or the GTC; if the information provided by the Company in its Company Account is inaccurate.
The Company understands and accepts that failure by a User to use a Number in accordance with the conditions set out in the GCU may result in automatic termination of the Number by operation of law, as well as of the deletion of data related to the use of the Number (for example: SMS, call logs, voice messages, etc.).
(ii) with eight (8) days’ written notice if ONOFF TELECOM suspects the Company of trying to take undue advantage of one of ONOFF TELECOM’s policies, whatever they may be, or of misusing them, if the Company has manifestly breached the GCU or the GTC, if the information provided by the Company in its Company Account is incomplete; in the event of non-performance or poor performance by the Company of one or more of its contractual obligations, and in the event of the Company being banned from holding a bank account.
In this case, ONOFF TELECOM will notify the Company of its intention to terminate the Contract earlier, indicating the nature of the breach it is pointing out, by simple email. Termination by operation of law will only become effective at the end of a period of eight (8) days following this notification, unless within this period the notified Company has fulfilled its contractual obligations or has remedied the situation.
The exercise of these termination options will not exempt the Company from fulfilling the obligations contracted under the Contract, including the payment of the Licence, Services, Numbers and related subscriptions, Credits, for which all the monthly instalments still to be paid will become due immediately and automatically, increased by a rate of 20%, without prejudice to the damages that it may have to pay to ONOFF TELECOM, bearing the non-performance of the contractual obligation and the pecuniary and moral damages suffered, in particular with regard to the damage to ONOFF TELECOM’s image.
Early terminations will be notified by ONOFF TELECOM to the Company by e-mail.
Such termination shall take effect automatically and without the need for judicial intervention.
Without prejudice to the rights of any claims that ONOFF TELECOM may start in the event of termination, the Company will pay ONOFF TELECOM, as a minimum, the increased sums due for the Licence, the Numbers and the Call Plan as well as the Services until the end of the period initially planned, as well as all non-cancellable expenses.
The Company must also reimburse, without delay and by operation of law, all commercial advantages, discounts, rebates and discounts granted during the Contract.
Sections 3 (Licence), 4 (Intellectual Property Rights), 5 (Payment), 9 (Data Protection), 7 (Limitation of Liability), and 12 (Miscellaneous) of the GTC shall survive the expiry or termination of a Subscription.
6.3 SUSPENSION OF SERVICE WITHOUT NOTICE
Without prejudice to the possibility of terminating the Contract, ONOFF TELECOM may suspend the Services or the access to the Application of one of the Users by simply informing the User or Company concerned by email in the following cases:
– if the Company or a User has infringed the GCU or the GTC;
– if the information entered for the User in his User Account is inaccurate or incomplete (for example a false name or an invalid email address) or if the User’s mobile number provided by the operator with whom the Operator Subscription was taken out is no longer valid;
– if the conditions of territoriality required for the allocation of a Number to the User are no longer met ;
– if ONOFF TELECOM suspects illegal, fraudulent or abnormal use of the Application or use contrary to the rights of third parties;
– if ONOFF TELECOM suspects that the Company or the User is trying to take undue advantage of the refund policy or one of ONOFF TELECOM’s other policies, whatever they may be, or to misuse them;
– if ONOFF TELECOM suspects that the Company Account or one of the User Accounts is being used fraudulently by a third party.
ONOFF TELECOM may also interrupt the use of the Application under certain conditions including, but not limited to, the impossibility of providing the Service, problems of external origin that make the implementation of the Service difficult or imprudent, technological state of the art, the need to modify the Application or the Services.
The Company is informed that, at any time, ONOFF TELECOM reserves the right to carry out and/or have carried out any additional investigation, in particular on the elements transmitted by the Company and, in the event of reasonable doubt regarding the user of the Service or the documents that were transmitted in support of the subscription, to refuse or cancel any subscription to the Contract. In this case, the subscription request will be automatically refused or cancelled, and the Company will be notified by email.
ONOFF TELECOM reserves the right to delete at any time a User Account which does not comply with the applicable legal provisions, the rights of third parties or which does not comply with the GCU or the GTC. This would be the case, for example, of a User Account created on the basis of a false name, surname or an invalid e-mail address.
ARTICLE 7 LIMITATION OF LIABILITY
ONOFF TELECOM undertakes to bring all the necessary skills and care to the provision of the Services linked to the Licence and to implement all the necessary measures in order to provide the Services on a permanent and continuous basis. In this respect, ONOFF TELECOM only has an obligation of a “best effort” kind. The Company acknowledges that it has had all the necessary time to understand all the uses and Services provided by ONOFF TELECOM within the Application and the WebApp. The installation and configuration of the Application and/or the WebApp are carried out by the User and ONOFF cannot guarantee the consequences linked to poor preparation of the equipment, non-compliant installation or poor configuration.
The Application is provided “as is” and will be used at the sole risk of the Company and the User, with no guarantee other than the legal guarantee of conformity for the duration of the Licence and the service levels described in article 9 of the GCU. In this respect, the Company and/or the User are solely responsible for the preservation, security and integrity of the data that they process or store, hardware and software, as well as for the confidentiality of their passwords and User Account identifiers and others in connection with the use of the Services.
The Company acknowledges that the effective use of the Application by each of the Users depends on the availability of the communications and broadband Internet services of the Operator of each of its Users. In addition, usage limits and geographical restrictions specific to the Application may vary depending on the information available on the Website in due course.
ONOFF TELECOM assumes no responsibility towards any third party or towards the User and the Company concerning the content, sms, mms, telephone communications exchanged within the framework of the Application, the latter being solely responsible for the content created by the User and submitted and exchanged thanks to the Application.
ONOFF TELECOM makes every effort to ensure the confidentiality of information and content exchanged using the Application.
ONOFF TELECOM does not guarantee that the Application will always be available, accessible, uninterrupted, reliable or error-free. Furthermore, no guarantee is offered concerning Internet connections or transmissions, or the quality of calls made using the Application.
IN GENERAL AND TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ONOFF TELECOM EXPRESSLY EXCLUDES ALL OTHER WARRANTIES, REPRESENTATIONS, AND CONDITIONS WITH RESPECT TO THE APPLICATION, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE OR NON-INFRINGEMENT.
If a third party, regardless of its legal status, brings a claim against ONOFF TELECOM in relation to, or following (i) any breach on the part of the User or the Company of the GCU and GTC, (ii) any breach on the part of the User or the Company of any applicable law or regulation, (iii) any violation on the part of the User or the Company of the rights of third parties (including intellectual property rights), (iv) the content created and exchanged by the User, the Company and the User shall jointly and severally guarantee ONOFF TELECOM against all damages, liabilities, losses, condemnation, costs and expenses (including lawyers’ fees, legal fees, expert fees and other reasonable costs) that may result.
Subject to the foregoing and in accordance with applicable law, ONOFF TELECOM may not be held liable towards the Company or the User, whether or not ONOFF TELECOM has been informed of the possibility of such damage or loss, for direct or indirect damage and in particular any damage, loss or corruption of data; damage resulting from the actions of third parties or cases of force majeure; any claim, damage or loss resulting from, or related to, the User’s inability to use all or part of the Application or its functionality; the User’s inability to make the necessary arrangements to contact the emergency services; the User’s inability to provide accurate physical location information to an emergency service; the conduct of third party emergency service agents and call centres with which the User is connected.
As the Services in no way replace the primary mobile telephony service provided by the operator with whom an Operator Subscription has been taken out, the Company acknowledges and accepts that the Numbers do not allow calls to be made to all classes of numbers. Consequently, calls that cannot be made from the Application (i.e. in particular calls to special numbers, international numbers and emergency numbers) must be made directly from the User’s telephone by means of their Operator Subscription. ONOFF TELECOM reserves the right to allow Users to make calls to additional classes of numbers after the launch of the Services.
In addition to the above, ONOFF TELECOM may not be held liable towards the Company or the User, whether or not ONOFF TELECOM has been informed of the possibility of such damage or loss, for any indirect damage, and in particular, any loss of income, contracts, actual or anticipated profits, opportunity, brand image or reputation, clientele or turnover.
Insofar as the Company demonstrates that it has suffered a direct loss, ONOFF TELECOM’s liability will be expressly limited to one hundred percent (100.00%) of the sums actually received by ONOFF TELECOM under the Contract during the last six (6) months prior to the occurrence of said loss. Liability claims against ONOFF TELECOM are subject to the statute of limitations according to common law from the time of the triggering event.
ARTICLE 8 FORCE MAJEURE
ONOFF TELECOM cannot be held responsible in the event of non-performance resulting from a case of force majeure. Exceptional bad weather, natural disasters, fires and floods, lightning, electronic surges, attacks, internal or external strikes, internal or external failures or breakdowns such as failures linked to the telephone network are considered to be cases of force majeure, as long as they are not the fault of ONOFF TELECOM and are beyond its control, the network of ONOFF TELECOM’s service provider(s), and all those emanating from the mobile telephone operator with which an Operator Subscription has been taken out by the Company or the User, and in general any irresistible and unforeseeable event that does not allow the Application to function properly.
ARTICLE 9 PROTECTION OF PERSONAL DATA
ONOFF TELECOM is responsible for the processing of data that it collects and stores and that is necessary for the delivery of services linked to the Licence to which the Company subscribes (hereinafter referred to as “Personal Data”).
Personal Data is collected and processed for the following purposes i) to provide an Application offering innovative communication and content-sharing Services; ii) to create, use and maintain a User Account and a Company Account; iii) to manage Numbers, contacts, conversation groups, etc.; iv) to modify and personalise the functions and features of the Application; v) to receive and process transactions carried out via the Application or the Management Console; vi) to ensure the conservation and confidentiality of content exchanged via the Application; vii) to create, use and maintain a User Account and a Company Account, iv) modify and personalise the functions and features of the Application; v) receive and process transactions carried out via the Application or the Management Console; vi) ensure the preservation and confidentiality of content exchanged via the Application; vii) provide assistance and resolve any problems encountered when using the Application or the Management Console; viii) to inform you of updates to the Application and offers and Services; ix) to solicit opinions or participation in surveys in order to improve our Services; x) to comply with legal, regulatory and administrative obligations; xi) to avoid potentially prohibited or illegal activities.
ONOFF TELECOM may communicate the Personal Data of Companies and/or Users to third parties acting on its behalf, for the sole purpose of operating the Services, and in particular to service providers or subcontractors responsible for managing, hosting, maintaining and administering the Application and the associated services and transactions. The identity of these third parties may be provided to the Company on request. Personal Data are communicated to them in compliance with the provisions of the General Data Protection Regulation (no. 2016/679, hereinafter “GDPR”).
ONOFF TELECOM may communicate Personal Data to third parties acting on its behalf, for the sole purpose of operating the Services, and in particular, to service providers or subcontractors responsible for managing, hosting, maintaining and administering the Application and the associated services and transactions.
Within the framework of the processing that ONOFF TELECOM carries out, the Company and the Users have a right of access, rectification, deletion, a right to limit processing, a right to data portability, a right of withdrawal and a right of opposition. The company and Users, subject to proving their identity, may exercise these rights by sending a message to the following address: [email protected] or by sending a letter to the following postal address: for the attention of the Data Protection Officer, ONOFF TELECOM – 26 boulevard de Bonne Nouvelle – 75010 Paris.
ONOFF TELECOM provides an Application, Services and innovative tools enabling, in particular, the electronic communication of content and, in particular, instant messages, SMS and MMS. The Company and the User use the Application, the Services and the Number under their own responsibility and are “data controllers” within the meaning of article 4, paragraph 7 of the GDPR, with regard to the Personal Data that they collect and process. The Company thus agrees to comply with all applicable laws, regulations and international conventions regarding the protection of Personal Data. Whenever necessary, the Company guarantees respect for the rights of Users, in particular respect for the individual privacy of employees within the meaning of article L1121-1 of the French Labour Code (code du travail) and their personal lives. The Company is the only responsible for guaranteeing the rights of all contacts that can be reached via the Application, the Services and the Numbers assigned by ONOFF TELECOM and undertakes to comply with all applicable regulations.
To enable the Company and the User to make optimal use of the Application, ONOFF TELECOM offers the Company an “onboarding” service consisting of learning how to use the Application. Under no circumstances may ONOFF TELECOM be held responsible for the Company’s use of the Application, the Numbers and the Services in a manner that does not comply with the applicable laws and regulations.
ARTICLE 10 TRIAL PERIOD - TEST PHASE
When the Company benefits from a period to test the Application, the WebApp and the Services (the “Trial Period”), ONOFF TELECOM may, from time to time, make one or more Services available on a trial or test basis until the date specified in the Order Form, the quote exchanged with ONOFF TELECOM or the promotional landing page, if applicable. During the Trial Period the GTC will be applicable to the extent possible, in particular articles 3.2, 4, 7, 8, 9 11, 12.3 and 12.5. At the end of the Trial Period, all of the Contractual Documents are automatically applicable except in the case of a non-conclusive trial, which shall be terminated by email sent by the Company to ONOFF TELECOM, before the end of the Trial Period, according to the specific conditions mentioned. The Company acknowledges that certain Trial Periods may end-up with a firm and automatic commitment to place Orders and subscribe Numbers. The Company may be asked to reference one or more valid and up-to-date payment methods during the Trial Period.
ALL DATA ENTERED BY THE COMPANY, THE USER OR ONOFF TELECOM WITHIN THE APPLICATION, WEBAPP OR MANAGEMENT CONSOLE DURING THE TRIAL MAY BE PERMANENTLY LOST UNLESS AN ORDER IS PLACED FOR THE SAME SERVICES COVERED BY THE TRIAL. THE COMPANY CANNOT TRANSFER THE DATA ENTERED DURING THE FREE TRIAL TO A THIRD-PARTY SERVICE OR APPLICATION. THE APPLICATION AND SERVICES ARE PROVIDED “AS IS” WITHOUT WARRANTY OF ANY KIND DURING THE TRIAL PERIOD.
ARTICLE 11 APPLICABLE LAW
THESE TERMS AND CONDITIONS ARE GOVERNED BY FRENCH LAW. ONOFF TELECOM provides the Company and Users with a support service accessible via its Website. Any complaint must be formulated through this service prior to any legal action. ONOFF TELECOM undertakes to respond to any dispute or request for reimbursement within thirty (30) working days from the date of receipt thereof.
IN THE EVENT OF A DISPUTE ARISING FROM THE INTERPRETATION OR EXECUTION OF THE CONTRACT, THE PARTIES WILL ENDEAVOUR TO FIND AN AMICABLE SOLUTION. Any Company established in France is informed that it may refer any dispute with ONOFF TELECOM free of charge to the Electronic Communications “Mediator” on its website: www.mediateur-telecom.fr.
IN THE ABSENCE AND ONLY IN THE ABSENCE OF AN AMICABLE SOLUTION BETWEEN THE PARTIES WITHIN THIRTY (30) CALENDAR DAYS FROM RECEIPT BY THE RECEIVING PARTY OF THE REQUEST FOR CONCILIATION, ANY DISPUTE CONCERNING THE FORMATION, VALIDITY, INTERPRETATION, THE COURTS WITHIN THE JURISDICTION OF THE COURT OF APPEAL OF PARIS (FRANCE) SHALL HAVE EXCLUSIVE JURISDICTION, NOTWITHSTANDING PLURALITY OF DEFENDANTS, INTERVENTION BY FORCE, IN PARTICULAR THE INTRODUCTION OF THIRD PARTIES, THIS ATTRIBUTION OF JURISDICTION ALSO APPLYING TO ACTIONS FOR INJUNCTIVE RELIEF, EMERGENCY OR PROTECTIVE PROCEEDINGS OR APPEALS.
ARTICLE 12 - MISCELLANEOUS
12.1- INDIVISIBLE CONTRACT: The Contractual Documents constitute all the conditions applicable to the Company and the User, assimilating, integrating and replacing all previous and current declarations and agreements relating to this subject. No modification, amendment or waiver of any stipulation of the Contractual Documents shall be binding on ONOFF TELECOM unless it is made in writing and duly signed by authorised representatives of ONOFF TELECOM.
12.3 CONFIDENTIALITY: Any information that may have been brought to the attention of the Company and the User in the context of this Agreement or the Trial Period, whether or not it is covered by an Intellectual Property Right and regardless of its nature, in particular all documents, specifications, studies, drawings, diagrams, know-how, tools and components will remain strictly confidential. The Company undertakes not to reveal or transmit said information to any third party, and to take all necessary measures to ensure compliance with this confidentiality clause by Users.
12.4 TRANSFER: The Contract may be the subject of a total or partial transfer, for consideration or free of charge within the context of a universal transfer of assets, merger, demerger, contribution to a company, partial contribution of assets, or any other restructuring operation, by ONOFF TELECOM, which is already authorized by the Company. In application of the provisions of article 1216 of the Civil Code, the transfer of the Contract will produce its effects with regard to the Company when the contract concluded between ONOFF TELECOM and the new beneficiary is notified to it or when it takes note of it; in this hypothesis, ONOFF TELECOM will no longer be held jointly and severally liable for the performance of the Contract, which has already been accepted by the Company.
12.5 PROOF: The Company and the User recognise that electronic communications as well as exchanges carried out via the Management Console are modes of communication validly accepted as proof by ONOFF TELECOM. All information recorded in ONOFF TELECOM’s computer databases has, until proof to the contrary, the same evidential value as a written document signed on paper, both as regards its content and as regards the date and time on which it was made and/or received, until proof to the contrary.
An Order Form must be signed by the parties on the same copy or on separate copies, and/or by “.pdf” format file or electronic signature within the meaning of the French Civil Code. Any copy of an Order Form made by reliable means (e.g. digital image, photocopy, facsimile) shall be deemed to be an original, and all signed copies taken together shall be deemed to constitute one and the same document.
12.6 PROMOTIONAL USE: Unless otherwise stated by the Company, ONOFF may use the Company’s name and logo on all media, in all forms and on all distribution channels (including in particular paper, brochures, digital, websites, social networks etc.) in order to identify it as a customer, for promotional purposes.
12.7 WAIVER/DIVISIBILITY: The fact of not executing or performing any of the stipulations of the GTC or not requesting the execution by the Company of a stipulation of the GTC shall in no case be considered as a waiver of these stipulations nor affect the validity of the Contract or the GTC, or the right by ONOFF to have each of the stipulations executed in application of the conditions of this Contract or the GTC. If any provision of a Contract Document is held by a judicial or regulatory authority to be invalid or unenforceable, the meaning of that provision shall be interpreted so far as possible so as to render that provision enforceable. If no plausible interpretation can save the stipulation, it will be excluded and the other stipulations will not be affected and will be carried out, as far as possible, in accordance with the original intentions and conditions.