GENERAL TERMS for the PROVISION of TELECOMMUNICATION SERVICES by NETERRA EOOD
effective from 15th of October, 2012
I. SCOPE AND DEFINITIONS
1. These General Terms govern the relations between Neterra EOOD, with its headquarters and business address in Sofia, 20A Andrei Saharov Blvd., hereinafter referred to as Neterra, and the Clients, regarding the provision of telecommunication services by Neterra. These General Terms are binding upon Neterra and the Client, their duration is unlimited and their effect continues as long as Neterra provides services to the Client based on Orders received.
2. The contract between Neterra and the Client constitutes the set of an Order for the provision of telecommunication services accepted in accordance with these General Terms, Description of the Service (for each type of service), a Service Level Agreement, if applicable, and these General Terms.
3. In case of any discrepancies, the following documents shall apply in order of decreasing priority:
a) Service Order Form;
b) Service Level Agreement;
c) Descriptions of the Services;
d) The present General Terms.
4. For the purposes of these General Terms:
4.1. "Telecommunication Service" provided by Neterra shall mean each service described in an Order for the provision of telecommunication services;
4.2. "Description of the Service" shall mean a document containing the main parameters of the service provided;
4.3. "Commercial Parameters of the Service" – included in the Description of the Service. The Commercial Parameters are subject to negotiation between the Client and Neterra and shall be reflected in the Service Order Form.
4.4. "Technical Parameters of the Service" – include elements of the service technical implementation and shall be defined in the Description of the Service. A change in the Technical Parameters of a particular service does not affect the commercial conditions or the use of the service by the Client.
4.5. "Service Level Agreement" - describes the service quality assurance and maintenance conditions, including liquidated damages in case of deviation from the Technical Parameters for availability;
4.6. "Service Activation Date" shall mean the date on which Neterra begins the effective provision of a new service to the Client or the date on which a change in an already activated service is introduced.
4.7. "Service Activation Period" shall mean the period within which Neterra undertakes to activate a particular service. It begins as of the date of receipt of the initial payment by the Client, unless otherwise agreed in the Order;
4.8. "Acceptance Protocol" shall mean the protocol signed upon successful completion of the tests and the acceptance of the services provided by Neterra on the part of the Client;
4.9. "Service Period" shall mean the period specified in the Service Order Form for each particular service, during which Neterra undertakes to provide the service agreed upon with the accepted Order. This period shall commence as of the Service Activation Date;
4.10. Billing Period - shall mean the period of time on which basis the service provision is accounted for and for which the Client pays the price agreed between the parties. The Billing Period shall be indicated in the Order;
4.11. "(The)Network" shall mean one or more electronic communication networks for the provision of the telecommunication services provided for in the Order.
5. Types of Services provided by Neterra via the Network
5.1. "Fixed Term Services" - the provision of these services is terminated with the expiry of their service period.
5.2. "Services with Automatic Renewal" - the provision of these services continues after the expiry of their service
5.3. According to payment method services are divided into prepaid or postpaid services.
5.4. In terms of billing method services can be provided on a subscription basis or on demand. In the case of subscription services, billing is based on the period during which the Client has access to the service, regardless whether they use it or not. In the case of services on demand, the Client gains access to the service and can use it on demand and billing is based on the actual use of the service.
5.5. Regarding the way in which the services are provided, they are divided into one-time services and recurring services.
6. Service Provision Order
6.1. The Service Order Form concluded between Neterra and the Client shall be considered valid as of the date of its signing by the two parties.
6.2. The Service Order Form shall indicate the identification information of both Neterra and the Client, description of the services, period or date for service activation, service period, contact persons, correspondence address, etc.
6.3. By signing the Service Order Form the parties agree on:
6.3.1. The provision of one or more new services, each one marked as "new";
6.3.2. Changes in relation to services provided by Neterra to the Client. These services are marked as "modified";
6.3.3. The termination of services, where the termination is executed by mutual consent of the parties.
6.3.4. The Service Order Form may also contain a description of all other services provided by Neterra to the Client at that time, where these services shall be described in a separate section.
6.4. Neterra may provide services at zero cost (zero price in the Order) even when the Service Order Form is not signed by the Customer.
7. Service Activation. Acceptance Protocol
7.1. The service activation shall be verified by conducting an acceptance test. The duration and conditions for the test administration are specified in the Description of the service.
7.2. The test is considered successful if its results correspond to the parameters listed in the Description of the service.
7.3. Neterra shall start the provision of the services after the successful completion of the acceptance test. This date is considered the activation date of the services.
7.4. On the activation date, an Acceptance Protocol (the Protocol) shall be drawn up establishing that the quality indicators agreed between the parties in advance are met. The Protocol shall be signed by authorized representatives of the parties and constitutes an integral part of the Contract. Authorized representatives of the parties shall be considered their employees as well as other persons who may be reasonably assumed as able to verify the activation of the services.
7.5. In the event that the Client does not sign the Protocol and does not raise any objections concerning the service quality within 5 days, the Acceptance Protocol shall be deemed signed.
7.6. In case the Client has reasonable objections, they shall be considered, the changes required shall be introduced and a new acceptance test shall be conducted.
II. RIGHTS, OBLIGATIONS AND RESPONSIBILITIES OF THE PARTIES
8. Neterra has the right:
8.1. to receive from the Client the amounts agreed for the services provided in time limits and amounts in accordance with the terms of the Order;
8.2. to give directions and instructions to the Client for the proper use of the services;
8.3. to temporarily suspend the service provision to the Client upon the carrying out of preventive inspections, repairs and setup of the Network;
8.4. to modify the Technical Parameters and configurations of the services provided that the Commercial Parameters of the services are not changed and that the modifications are introduced only during the scheduled preventive maintenance;
8.5. to immediately stop the provisions of the services in the event that the Client is in breach of art.12.7 below.
9. Neterra is obliged:
9.1. to provide the Client with the services agreed upon;
9.2. to provide the services with a guaranteed quality and maintenance level in accordance with the Service Level Agreement (if applicable) and the Description of the Services containing the quality assurance and liquidated damages in case of deviation from the Technical Parameters for availability;
9.3. in cases of scheduled preventive maintenance which may lead to the interruption or degraded quality of the services, to notify the Client in accordance with the terms provided for in the Contract.
10. Responsibility of Neterra
10.1. Neterra is responsible for the provision of the services only in the range between the service termination points.
10.2. Neterra has the right to immediately terminate the provision of the services if the Client threatens the normal operation of the Network or that of other clients of Neterra in one way or another, or if the services have been used in a way that can lead to liability for Neterra.
11. The Client has the right:
11.1. to receive the services with parameters and quality in accordance with the terms of the Contract;
11.2. to request and receive information and check ups regarding the use of the services provided by Neterra;
12. The Client is obliged:
12.1. to pay in good time and in full the amounts payable by them, which are determined in the Orders.
12.2. to notify Neterra of any problems related to the use of the services;
12.3. to protect the good name and commercial image of Neterra;
12.4. to fully assist Neterra in the provision of the services and the troubleshooting related to them, as well as to provide the representatives of Neterra with access to the termination points for the service provision located in their possession;
12.5. to use only terminal equipment approved by Neterra;
12.6. not to make any changes to the terminal equipment provided by Neterra and not to connect to it any accessories which are not authorized by Neterra;
12.7. not to disturb the normal functioning, security or integrity of Neterra's network or services, not to disturb or obstruct the usage of Neterra's services by its Clients as well as not to use the services in a way that may lead to liability for Neterra.
13. The Client's inability to use the services, due to reasons which Neterra is not responsible for, does not relieve them of the obligation to pay the remuneration agreed for them.
III. FORCE MAJEURE
14. Force Majeure shall mean any event of irresistible force or unforeseeable circumstances. Cases of force majeure shall be considered also the actions of third parties beyond the control of Neterra which have led to Neterra's inability to fulfil its obligations.
14.1. In the event of force majeure, the parties shall not be responsible for the fulfilment of their obligations during the period of the irresistible force or unforeseeable circumstances. The cancellation of the obligations in this case shall not apply with respect to late payments due before the occurrence of the force majeure.
14.2. The party, which has come under the influence of force majeure, is obliged to immediately notify the other party of the circumstances and restrictions imposed by it.
IV. PRICES. TERMS OF SERVICE PAYMENT
15. For the services provided, the Client shall pay to Neterra a remuneration, as follows:
15.1. With respect to the one-time services:
a) a fixed price for the service provided (one time fee);
15.2. With respect to the recurring services on a subscription basis:
a) a non-recurring payment for activation/modification (installation fee);
b) a recurring subscription price (subscription fee);
15.3. With respect to the services on demand:
a) a usage fee;
15.4. Other fees specified in the Service Order Form
16. Within 5 days from the signing of the Service Order Form by the parties, the Client shall pay to Neterra the initial amount for each service, including:
a) a non-recurring payment for activation/modification (installation fee);
b) a first subscription price (for prepaid recurring services);
c) other fees (if any).
17. The Client shall pay the fees agreed on particular dates (maturity) specified in the Contract for each service.
18. Recurring services shall be charged from the activation date to the termination date.
19. A subscription price in proportion to the time during which a recurring service has been provided shall be due for the first and the last billing period of its provision. The compensation shall be executed after the end of the respective billing period.
20. The prices for services provided shall be paid by bank transfer to a bank account of Neterra specified in the Service Order Form.
20.1. All prices, unless otherwise indicated, are exclusive of VAT.
20.2. Not receiving an invoice does not relieve the Client from the obligation to pay the fees on time.
20.3. Upon payment by bank transfer, the payment shall be considered effected on the date of receipt of the amounts in the account of Neterra.
20.4. All commissions, fees and other expenses of the Client's bank in connection with the bank transfer shall be borne by Client.
21. Liquidated Damages for Default by Neterra
21.1. In cases of deviation from the guaranteed time for service availability, the Client may request, and Neterra shall be obliged to pay them liquidated damages, the exact amount or method of calculation of which are defined in the Service Level Agreement.
21.2. The total amount of the liquidated damages for a certain period during which the availability of a service is calculated may not exceed the fee for that service for the same period.
21.3. Requests for the recovery of the liquidation damages under the preceding article shall be submitted by the Client to Neterra in writing within 30 days after the end of the billing period during which the degraded quality has been established. Upon reasonable claims, Neterra undertakes to issue credit notes.
21.4. Neterra shall not be obliged to pay the damages in the cases where the deviation from the service availability time is due to force majeure, reasons beyond the termination points for the service provision, or preventive maintenance carried out by Neterra during the same.
22. In case of delay in the service activation exceeding 30 days, Neterra shall be obliged to pay a penalty for each day of delay in the amount of 0.25% of the non-recurring payment for the activation of the service but not more than the full amount of the installation fee.
23. Liquidated Damages for Default by the Client Temporary Sanctions
23.1. In case of delayed payment of the amount payable by the Customer, Neterra is entitled to a penalty amounting to 0.25% of the amount due for each day of delay until the final payment.
23.2. In case of delayed payment exceeding 7 days, Neterra may terminate the service provision. This does not deprive Neterra of the right to cancel the Contract entirely or only in respect of the service for which the Client does not pay the amounts due. In this case the Client shall pay a penalty in the amount of the subscription fees for the service provision for the period of its termination. The service provision shall be restored after the Client pays all amounts due under the Order, including the damages.
VI. TERMINATION. CANCELLATION
24. Services shall be terminated as follows:
24.1. Each service may be terminated by mutual consent of the parties expressed in written form;
24.2. In the case of services with a fixed end service date - their provision shall be suspended with the expiry of the service period;
24.3. In the case of services with automatic renewal, the provision of these services shall continue after the expiry of their service period for unlimited number of subsequent periods, where each of them is equal to the the billing period for the respective service. The provision suspension of these services shall be executed after the submission of a written notice by either party that wants to terminate the service. The notification period shall be equal to the billing period, but not more than a month.
25. Cancellation by the Client in case of delayed activation
The Client can partially cancel the Contract in relation to a particular service by giving a written notice to Neterra which grants an additional 15-day period for the activation of the service. If the service is not activated in the 15-day period provided, the Contract shall be considered cancelled in respect of that service.
26. Cancellation by Neterra
26.1. If the Customer fails to pay the initial amount for a particular service in time, Neterra has the right to cancel the Contract in respect of that service by giving a written notice to the Client, which grants an additional 15-day period for the payment of the initial amount. With the expiry of this period the Contract shall be considered cancelled in relation to this service and Neterra shall suspend its provision, unless the outstanding amount is fully paid to Neterra together with the damages due in the meantime.
26.2. If the Client fails to pay the subscription fee for a particular service by more than 30 days, Neterra has the right to partially cancel the Contract in respect of that service by giving the Client a payment deadline. With the expiry of this deadline Neterra shall suspend the service provision, unless the outstanding amount is fully paid to Neterra together with the damages due in the meantime.
26.3. Neterra may terminate the contract immediately if the Client is in breach of art.12.7 above;
26.4. Beyond the above situations, Neterra has the right to rescind the Contract fully or partially in relation to a particular service upon non-compliance with any other obligation of the Client.
27. Liquidated damages upon cancellation through the fault of the Client
Upon the full or partial cancellation of the Contract in relation to a particular service through the fault of the Client, the latter shall owe Neterra liquidated damages in the amount of the remaining subscription fees for the services, regarding which Neterra has exercised its right of cancellation, until the expiration of their period, and in the cases of cancellation of the entire Contract, for all services.
VII. OTHER TERMS AND CONDITIONS
28. The provisions of the Contract do not intend the ceding of software rights. Neterra does not cede and the Client does not acquire copyrights and/or any other intellectual property rights relating to the services provided by Neterra to the Client.
29. While the contract is in force and for a period of 3 years following its termination each party shall be obliged not to reveal to third parties and shall keep in confidence facts, information, decisions and data in relation to the commercial activity of the other party, marked as confidential or which may reasonably be deemed to be confidential. Each party shall ensure that its employees and sub-contractors shall comply with the same confidentiality restrictions as the ones stipulated herein. Commercial parameters and conditions of the contract are confidential information.
30. Addresses and means of correspondence between the parties shall be agreed in the Service Order Form.
30.1. If either party changes its address indicated in the Service Order Form, it shall notify the other party in writing within 5 days. In the event that the party fails to fulfil its notification obligation, all messages sent to the known address shall be considered duly sent and received.
31. The parties represent that in case any of the clauses in the Contract is found to be invalid, it does not void the Contract, other clauses or parts thereof. The invalid clause will be replaced by the mandatory provisions of the law and the parties will continue to apply the remaining part of the Contract without the respective void provision or in accordance with its replacement by law of the respective mandatory provision.
32. All disputes relating to the Contract shall be settled by agreement between the parties, and if no agreement is reached, they shall be settled by the Arbitration Court at the Bulgarian Chamber of Commerce and Industry in accordance with its Regulations on cases based on arbitrary agreements, in a panel of three arbitrators.
33. For issues not governed by these General Terms, the provisions of the current Bulgarian legislation shall apply.