GENERAL TERMS & CONDITIONS AND PRIVACY POLICY

Privacy Policy

This policy sets out the data protection and information collection practices of Naka AG, which is the service provider of NAKA AG. This Privacy Policy applies to information we collect, when you access or use any of our websites and products, when you communicate to our staff, or when you otherwise interact with us (collectively, the “Services”).
When we refer to NAKA, we refer to Naka AG, Switzerland, and other NAKA group companies (“NAKA”, “Naka Mobile”, “Naka AG”, “we” or “us”).
Please take time to review this policy carefully as it tells you how your personal information will be treated by us. In order to make unconditional use of the NAKA AG Services, you must unconditionally agree to this policy.

Information We Collect

Personal information

The term “personal information” refers to information that tells us specifically who you are, such as your name, company name, phone number, email address, postal address or payment information (e.g credit card holder information, bank account holder information).
Personal information is collected during your registration with NAKA AG and is necessary to provide our products and services. No personal information is collected without your consent or prior to your registration. We may use information collected about you to protect our rights and to investigate and prevent fraud or other illegal activities and for any other purpose disclosed to you in connection with our Services.

Other information

We also automatically collect other non-personal information as you use our Services. While this information does not contain any personal data, it is still stored together with your registered account with us. This information includes:

• Logged web data. As with most technology services offered over the internet, our servers automatically collect information when you access our Services and record it in log files. This log data may include your Internet Protocol (IP) address, address of web sites visited before using our Services, your browser type and settings, time and date and cookie data.
• Your account activity. As part of our core service, a record of calls, data sessions, SMS and other consumed services, transactions and account activity is kept and stored for retrieval.
• Device and location information. As part of our core service, information on your device (International Mobile Equipment Identity, IMEI), as well as an approximated location (network identity, GSM Cell ID and Location Area Code) is collected and stored, as a requirement for being able to use the Services.
• Payment data. When making payments using our Services, we store partial data on the payment method in use, such as an account identifier or type of payment method in use.

Cookies

Cookies are small files that make it easier for you to use our Services online. Your Internet browser receives these files automatically from our servers and saves these cookies on your computer. We use two types of cookies, so-called session cookies and permanent cookies. We send a session cookie to your computer when you visit our web services and is used to remember your visit on each page you visit, and in order to keep you logged in for the duration of your visit, if necessary. When you close your browser, this cookie is deleted and is no longer effective.
We also set a permanent cookie once you have logged in to your personal account, for the purpose of remembering your visit for a longer period of time.
You can set your browser so that it informs you when it accepts a cookie or so that it does not accept cookies. Please make sure that your browser settings allow cookies so that you can take advantage of all our services without any loss of quality.
Our Sites and Services do not collect personal information about your online activities over time and across third-party websites or online services.

How is the information we collect processed?

General

Information is collected solely for the purpose of being able to provide you with our Services; either due to actual technical requirements of the core product (such as collecting GSM networking data and web activity), or in order to provide you a personalised Service experience.

Email and correspondence

We may send you email directly related to the use of our Services, such as notifying you of payments or the status of your service. We may also send you email or other forms of correspondence that are intended to notify you of our new products, services, special offers or updates or improvements to our existing products and services. You have the right to “opt-out” and prohibit use of your personal information for direct marketing purposes. If you prefer not receive any such email correspondence or marketing information concerning our products and services, please contact us at info@nakamobile.com or click “unsubscribe” as instructed in any email from us.

Personal information

The information that we collect from you via the Site and otherwise is an integral part of our business, and NAKA is not in the business of selling or renting your personal information to third parties.

Transferring information internationally

Our products and services may be provided using members of our group of companies and third parties acting on our behalf located in various countries around the world that may be located in countries outside of the European Economic Area (EEA), or countries deemed by the European Commission to have satisfactory data protection. These other countries may not offer the same level of protection for the information collected about you, although we will at all times continue to collect, store and use your information in accordance with this Privacy Policy and the General Data Protection Regulation (GDPR). NAKA will ensure we share data only with those organizations that satisfy an adequate level of data protection in line with applicable data protection legislation.

Operators and partners

As our core service depends on telecommunications services provided to us by various national mobile network operators, (collectively, the “Operators”), we may be required to share your personal information with them, in order to be able to provide you our Services, if the Operators have made the transmission of personal information a mandatory condition for granting service using their network. From time to time NAKA may also employ or engage other companies and individuals to perform services on our behalf.
Examples of this include sharing a copy of your identification document in order to receive a phone number from a country that requires registration of personal information for all prepaid and postpaid customers, provision of accounting, legal and financial services, fulfilling orders, shipping packages, sending postal mail, processing credit card payments and providing customer service. NAKA maintains ownership and control of the information so used.
Personal information is also shared with NAKA AG in full.

Disclosure required by law

We may disclose personal and non-personal information collected about you with state institutions and authorities if (i) disclosure is necessary to comply with any applicable law or regulation; (ii) to enforce applicable terms and conditions or policies; (iii) to protect the security or integrity of our Services; and (iv) if we believe such disclosure is necessary to protect our rights.

Sale of business

We may pass your personal information to a third party as part of the reorganisation or a sale of the assets of NAKA. You acknowledge that any acquirer or successor of NAKA may continue to use your information as set forth in this policy.

Disclosure with your consent

Other than as described in the foregoing, you will receive prior notice from us in the event we propose to share your personal information with third parties, and you will have a reasonable opportunity to give us such explicit consent.

Your right to data access

GDPR affords EU data subjects with additional rights that are summarized below. We also extend these rights to all of our registered customers.

• Right of Confirmation: You have the right to obtain from us confirmation as to whether or not personal data concerning you are being processed.
• Right to Access Your Data: You can retrieve a copy of your personal data and information collected on you at any time online.
• Object to, or Limit or Restrict, Use of Data: You can ask us to stop using all or some of your personal data or to limit our use of it.
• Amend Data: You can request the correction or update of personal data that we hold about you.
• Right to Erasure (Right to Be Forgotten): You can at any time terminate your account with us, resulting an erasure of all of your personal data.
• Right to Individual Decision Making, Including Profiling: You have the right not to be subject to a decision based solely on an automated processing, including profiling.
• Right to Withdraw Consent: Where consent forms the basis for processing, you shall have the right to withdraw your consent to our further processing as described in this Privacy Policy.
• Data Portability: You have the right to transmit the data to another controller without hindrance from NAKA.

In a case of objecting to our use of data, erasure of your data, or when withdrawing your consent, please note that we may no longer be able to provide you with the Services you have requested and may therefore terminate relevant agreements with you. In addition, we may be required to continue to hold your personal data to fulfil legal and regulatory obligations.
We reserve the right to reject or remove any information or content posted on our Site at our sole discretion.

Retention

We shall retain certain records of the information collected about you for a period of time as required by the law of Switzerland after termination of your account. Otherwise, we reserve the right to delete and destroy all of the information collected about you upon termination of your account unless you request otherwise.
Notwithstanding the above, you have the right to request the deletion of your data. Depending on the Services that we have provided to you, we may be required to hold certain data for as long as required to do so by the law of Switzerland, for legal purposes. We cannot continue to provide our Service to you if you request the deletion of your data.
You can request the deletion of your data as described above.

Governing law

This Privacy Policy shall be governed by and construed under and in accordance with the laws of Switzerland.
The English language version of this Privacy Policy shall be binding. Any translation or other language version of this Privacy Policy shall be provided for convenience only. In the event of a conflict between the English version and any translation or other language version of this Privacy Policy, the English-language version shall prevail. This Privacy Policy (including, if applicable, our terms and conditions) specify the entire agreement between you and us and supersede any and all prior agreements, terms, warranties and/or representations to the fullest extent permitted by the law.

Notification of changes

If we decide to change our privacy policy, we will post those changes on this page, and/or provide you with notice by other methods, so that you are always aware of what information we collect, how we use it, and under what circumstances it may be disclosed. It is your responsibility to check back to this page occasionally to see these changes.
This Privacy Policy was last amended on May 24, 2018.

Contacting us

If at any time you would like to contact us with your views about our privacy practices, or with any enquiry relating to your personal information, you can do so by sending an email to us at info@nakamobile.com.

General Terms & Conditions

INTRODUCTION

1. General

NAKA AG is the service provider for NAKA AG.

NAKA AG, Switzerland, (hereinafter referred to as the "Supplier”, "NAKA”, "NAKA AG”, "Naka Mobile”, "we” or "us”) provides the Products and Services under the conditions defined in these General Terms and Conditions (hereinafter referred to as the "GTCs”). Any pre-contractual and contractual relations between NAKA and Customer will be governed by the present GTCs, unless and in as far as explicitly otherwise agreed in writing between parties concerned. Customer acknowledges that he has been informed of and agrees with the present GTCs. Any stipulations included in documents issued by Customer, which do not conform to the present GTCs, will not be applicable. Customer explicitly acknowledges that his general conditions will not apply to the present agreement between Supplier and Customer. The term "Customer” used hereinafter shall duly refer to every such person or entity, purchasing, consuming or otherwise being engaged in use of NAKA's Products and Services.

2. Definition of NAKA's services and Products

NAKA is a high-quality national and international service provider in voice communications. NAKA offers a unique convergent solution using mobile telecommunication and internet. For purposes of these GTCs, the term "services” shall refer, jointly or alternatively, i) to the provision of mobile telecommunication services by NAKA, ii) to NAKA's broadband phone services (hereinafter referred to as "VoIP”), iii) to all related software, such as, but not limited to, "MyAccount” and websites, online and offline applications and software, allowing Customer to monitor and operate NAKA services. For purposes of these GTCs, the term "product”, shall refer, jointly and alternatively, to the SIM cards and services sold.

CHAPTER I: NAKA's SERVICES IMPLEMENTATION

3. General

NAKA gives the Customer, for the term of the Agreement, a non-transferable and non-exclusive right to use the Services as customer, according to the applicable Product Information and according to the existing network coverage. However it is not possible to guarantee services that are completely free of interruption or interference, particularly not in cases of force majeure (avalanches, floods, war, unforeseeable orders by the authorities, electricity cuts, viruses, etc.). Details and conditions regarding the Services provided by NAKA are contained in the specific Service and Product Description. Information on the national and international availability is obtainable at any time free of charge from NAKA website. Information regarding the availability of services is always provided on a non-binding basis. The Customer acknowledges that NAKA's Services can only be supplied if all the contractual and technical conditions have been fulfilled. NAKA is entitled to modify or cease its services at any time without giving prior notice thereof.

4. Customer's general Obligations

Customer shall ensure to use and treat NAKA's products and services lawfully and in compliance with these GTCs, with any other contractual documents duly integrated to the contract and with any recommendations Suppliers may from time to time duly issue and give due notice to Supplier.

5. Price and Invoice

• The price to consume and purchase NAKA's services and products is specified on the websites offered by NAKA.
• Unless otherwise expressly indicated, all such prices are excluding costs for delivery and transport and are exclusive of all applicable value added, sales, use, excise or other applicable taxes.
• An invoice shall be issued by Supplier for any and all amount due by Customer. Customer shall pay Supplier all charges under this Agreement without deduction or set-off. All payments shall be made to Supplier using the payment method indicated by Supplier.
• In the event Customer disagrees with any amount mentioned on the invoice, Customer shall notify Supplier within ten (10) working days in writing. The notification shall be by registered post.

6. Payment terms

• Customer agrees to pay all applicable charges for NAKA's Services and Products in accordance with the applicable Price List.
• Unless otherwise stated, all invoice amounts are required to be paid upfront on order.
• Payment shall be considered as effected when Supplier receives the applicable funds for the full amount due in its account.
• Any levies or bank charges that are due or may become due on the payment will be paid by Customer.
• In the event of late payments, Supplier shall have the right to charge an interest ascending to the annual rate of 12% on the outstanding amount.

7. Fair Use Policy

SIM card rates and tariffs assume fair usage of the Services by the customer. In the event of fair usage not being sustained, NAKA reserves the right to review the rates and tariffs applied to customer's account or to terminate the Services. NAKA may rely on the Fair Use Policy where customer's (i) ratio of outbound chargeable calls to inbound calls and/or (ii) usage of NAKA Data Services is excessive or unreasonable, as defined below.

In the case of NAKA telephony services, a ratio of outbound chargeable calls to inbound calls of more than 20% in more than two consecutive months is excessive use. It is unreasonable use of NAKA Services where customer's use of NAKA Services is reasonably considered by NAKA to be fraudulent or to adversely affect the NAKA network or other NAKA customers' use of or access to a NAKA Service or the NAKA network.

Where customer is in breach of this Fair Use Policy, NAKA may contact customer to discuss changing customer's usage so that it conforms to this Fair Use Policy. NAKA may also, without further notice to customer suspend or limit the service (or any feature of it) for any period NAKA thinks is reasonably necessary and/or terminate customer's agreement with no prior notice.

8. Relationship of the Parties

It is agreed that, unless otherwise stated expressly, the Agreement does not grant to Customer any exclusive rights. Supplier shall be entitled to enter into a same or similar contractual relationship as that provided under this Agreement to other individuals or entities. The relationship between the parties established by the Agreement shall be solely as described by the Agreement and nothing herein contained shall be deemed to constitute a Partnership between the Parties. The powers not expressly granted to Customer are expressly reserved to Supplier. Customer shall have no right, power or authority in any way to bind Supplier to the fulfilment of any condition not herein contained, or to any contract or obligation, expressed or implied. Nothing contained in the Agreement, the Cover Contract and its Attachments shall be construed to make Customer the agent for Supplier for any purpose, and neither party hereto shall have any right whatsoever to incur any liabilities or obligations on behalf or binding upon the other. Customer specifically agrees that it shall have no power or authority to represent Supplier in any manner; and that it will not at any time represent orally or in writing to any person or corporation or other business entity that it has any right, power or authority expressly granted by this Agreement.

9. Publicity

Customer shall, on no occasion whatsoever, make any announcements or statements to the public or create any written materials concerning the relationship between the Parties or concerning Supplier's product or business, without the prior written consent of Supplier.

10. Intellectual Property Rights

• General: In the absence of written provisions to the contrary, all intellectual and industrial property rights held by either party shall remain the property of that party. Nothing in this Agreement shall be taken as giving the other party any right or license relating to the intellectual or industrial property rights belonging to the other party.
• Material: In the event any marketing logo, works of authorship, training materials, telemarketing scripts, reports or data, any other proprietary information or promotional material in respect of Supplier's products and services ("the Material”) is made, created developed or written, by either Party in accordance with the activities contemplated hereunder and/or with the performance of this Agreement, this Material shall be deemed the sole property of Supplier with royalty-free right of use thereof for the other party. Where under this Agreement either party creates a new document or any other material likely to be protected under the law relating to intellectual and industrial property, such rights shall be the exclusive property of the party which has produced the material and no rights shall be given to the other party unless a non-exclusive licensing agreement shall give the said other party the right of internal use of the document and/or the material concerned for the purposes of facilitating the performance of this Agreement. The parties undertake to make any agreements necessary for the application of the provisions of this article. Customer shall indemnify, defend and hold harmless Supplier against all claims, suits (threatened or actual), liabilities and expenses (including reasonable attorneys' fees and expenses) arising out of or derived from whatsoever violation of intellectual property rights by Customer.
• Right to Use Supplier will grant Customer a personal, non-transferable and non-exclusive license to use any of the software and documentation regarding the service supplied by Supplier during the present agreement. Supplier and its licensors, if any, will always possess the rights, property rights and interests in and in relation with the supplied software and documentation, including any intellectual property rights related thereto.

11. Trademarks and other intellectual Property Rights

Customer may not resell or market the Communication Services. Customer shall not at any time during the term of Agreement or thereafter directly or indirectly use the Supplier's Trademark(s) except in a manner and to an extent to which Supplier may specifically and expressly consent in writing. Customer hereby acknowledges that the use by it of the Trademark(s) shall not create or confer any ownership-right therein in favour of Customer. Nothing in this Agreement shall be construed as transferring any patents, utility models, trademarks, trade names, design patterns, copyrights or any equivalent intellectual property rights from one party to the other.

CHAPTER II: SIM CARDS USAGE AND LOGISTIC

12. Ordering, Delivery and Activation

• General: All orders of Products pursuant to this Agreement shall be effected by the issuance of an Order by Customer. Such orders shall be firm and irrevocable and made in the way agreed from time to time by the parties. Customer will be responsible for the accuracy of all information contained in such order and fulfilment of the preconditions for the proper processing of the order in compliance with the agreed process. Such Order shall be fully filled in stating unit quantities, unit descriptions, applicable prices, and shipping instructions and any other details figuring in the Order. Supplier reserves the right to refuse, at its sole discretion, any order in cases such as, but not limited to: (a) the fulfilment of Customer‘s order is not possible because of technical and/or legal restrictions; or (b) the fulfilment of Customer's order would constitute or give rise to a breach of this Agreement.
• Order Placement: Orders for the Products are initiated when Customer sends an Order on the Supplier's website. In order to ensure that all information to start the ordering process is available, the Order must be complete.
• Invoice: Supplier will indicate Customer the amount to be paid for the Order in advance. An order shall be processed only upon receipt by Supplier of the invoiced amount.
• Delivery and Shipment: Customer shall bear all costs and expenses incidents to Supplier's shipment of the Products to it. Customer shall duly inform Supplier about the method of shipment and the carrier; being alternatively, the Post or any other private express carriers. Title to; and risk of loss or damage to; the Products sold by Supplier shall pass to Customer upon Supplier's delivery thereof to the carrier at the shipping point, being Supplier's office or alternatively the Post office, the carrier acting as Customer's agent. All claims for damages must be filed with the Carrier. All shipments will normally be made following Customer's instruction. Unless specific instructions from Customer specify the methods of shipment to be used, the Supplier will exercise his own discretion. Risk of loss or damage to the Products in transit without regard to any other circumstances surrounding the shipment, remains with Customer. In the event of miss-delivery, Supplier shall, on a reasonable efforts' basis, aid Customer in dealing with the carrier in tracing the shipment and obtaining delivery. In case of failure to accept delivery at the time of the first tender, Customer shall be liable of any additional costs incurred and be responsible for any loss, damages, destruction of the goods that may occur thereafter, except where Supplier has expressly retained any risk to the goods until delivery.
• Time of Delivery: Delivery dates and time set forth in any Customer's order or other purchasing documents, or any confirmation thereof or statement by Supplier shall be deemed to be estimated only and subject to Supplier's then current lead times for the products. Supplier shall bear no liability whatsoever for delay in delivering the product.
• Import control: Customer shall be responsible to satisfy any import regulation and to obtain, as the case may be, any necessary import documentation prior to import any Product. Customer shall secure and obtain, at its sole expense, such import documents as are necessary for it to fulfil its obligations under this Agreement. Upon Customer's specific request, Supplier shall on a reasonable efforts' basis, provide supporting import document that Supplier may issue.

13. SIM Card Expiry

Should the SIM card still not be activated 120 days after delivery, the SIM card and the call value included therein shall expire and its related number invalidated, without any compensation payable to Customer. The moment when the SIM card is activated is the moment of the SIM card is registered to Customer's account online.

In the case Customer does not use the SIM Card or the call value components over a period of 180 days, NAKA reserves the right to deduct a charge of EUR 1.00 per 30 days from the remaining credit balance of the account or phone number. With expiration of the credit the card shall be deactivated without prior notice. The phone number shall be lost without any compensation. NB: the applicable period of time prior to deactivation may vary from country to country and/or from product to product. Please obtain the relevant information at the point of sale or at NAKA AG website. No use shall be defined as no billable transaction per phone number over a period of 120 days in NAKA's Billing System for the SIM. Billing transactions are, but not limited to, SMS sending, inbound call, outbound call, data consumption and top-up of prepaid balance.

14. Registration

Customer is obliged to verify their identity when registering a SIM card, including, but not limited to, first name, last name, email address, complete address and identification documents i.e. passport photocopy and to provide this information upon request of Supplier within 6 hours. In case the legislation of the State of the place of where the product is being sold has implemented more stringent legislation, Customer shall comply with such and shall keep Supplier harmless from any and all proceedings and/or costs caused by Customer's unconformity.

15. Defect Check & Return Process

Notwithstanding to the applicable Return Process as may be defined by Supplier, Customer shall not initiate returns of Products without first checking with Supplier as to determining whether the problem relates to the Products or not. The Return Process is defined by Supplier. It may specify, amongst other, additional conditions and/or other occurrences in which, Supplier, on a without prejudice basis, shall agree to replace defective Products.

CHAPTER III: COMPLIANCE WITH LAW AND REGULATIONS

16. Compliance

• General: Customer shall, at its own expense, comply with any governmental law, statute, ordinance, administrative order, rule or regulation applicable to the exercise and performance of its duties and obligations hereunder and under the other contractual documents and shall procure all licenses and authorizations and pay all fees and other charges required thereby.
• Data Protection: Customer shall comply with, whichever guidelines Supplier may stipulate in respect of, and with any applicable law as to the protection of data. This is regulated in detail in a separate Privacy Policy document provided by Supplier.

17. Compliance as to Registration

Supplier hereby draws to Customer's attention to the strict observance of the registration obligations mentioned above under section 13.

18. Usage of the Services

Customer agrees to use and to insure that they use the service only for lawful purposes. This means, amongst others, that the service shall by no mean be used :

• to make offensive, indecent, menacing, nuisance or hoax Calls;
• fraudulently or in connection with a criminal offence;
• to send, knowingly receive, upload, download, or use any material which is offensive, abusive, indecent, defamatory, obscene or menacing, or in breach of copyright, confidence, privacy or any other rights;
• to cause annoyance, inconvenience or needless anxiety;
• to spam or to send or provide unsolicited advertising or promotional material or, knowingly to receive responses to any spam, unsolicited advertising or promotional material sent or provided by any third party;
• in any way which in NAKA's opinion is, or is likely to be, detrimental to the provision of the service to the Customer or any of NAKA's other customers;
• in an unlawful manner, in contravention of any legislation, laws, licence or third party rights; or
• in a way that does not comply with any instructions NAKA has given to the Customer.

19. Indemnification

Limited to these above-mentioned compliance obligations, Customer agrees:

• To indemnify, defend and hold Supplier, the directors, officers, stockholders, agents and employees of Supplier, harmless to the greatest extent possible under applicable law against any and all judgments, fines, penalties, amounts paid in settlement and any other amounts reasonably incurred or suffered by Supplier in connection with any threatened, pending or completed action, suit or proceeding, whether civil, criminal, administrative or investigative, arising from, in connection with or incidental to the performance of Services under this Agreement, including without limitation reasonable attorneys' and advisers' fee, costs and disbursements.
• Supplier shall, as a condition precedent to his or its right to be indemnified under this Agreement give Customer notice in writing as soon as practicable of any claim made against Supplier for which indemnification will or could be sought under this Agreement. In addition, Supplier shall give Customer such information and cooperation as it may reasonably require and as shall be within Supplier‘s power.
• In the event Customer shall be obligated to pay the expenses of any proceeding against Supplier, Customer, if appropriate, shall be entitled to (i) participate jointly with Supplier in the Supplier's defence, settlement or other disposition of any interest related to the Indemnity Matter, (ii) to settle or otherwise dispose of such Indemnity Matter, on such terms as Customer shall deem appropriate, provided that Supplier can obtain a written release from the claiming third party and is not adversely affected in any other manner.
• The indemnification provided herein shall not be deemed exclusive of any rights to which Supplier or any other Indemnitee may be entitled under any applicable law or contractual disposition. The Indemnification provided under this Agreement shall continue as to Supplier and each other Indemnity for any action taken or not taken while Supplier was providing services even though Supplier may have ceased to provide services at the time of any action, suit, or other covered proceeding.

CHAPTER V: WARRANTIES AND LIABILITY

20. As to the Services

Supplier endeavours to provide quality service to its customers but cannot guarantee the fault free working of the services and especially the fault free working of mobile networks. Supplier is not liable for any service or proof of service of Customer, which is carried over the Supplier's network. Supplier is also not liable for operators ceasing or terminating roaming, termination or interworking services. Supplier will give best effort to restore and maintain these services. Supplier reserves the right to perform maintenance activities as required for a variety of reasons and every effort will be made to minimise any adverse impact on service quality.

21. Specific conditions for provisioning VoIP Service

• General: The VoIP service is provided on a best efforts basis. Events beyond Supplier's control may affect the service, such as power outages, fluctuations in the internet, user's underlying ISP or broadband service, or maintenance.
• Emergency numbers: VoIP service is not a telephone service and may not support specific calls, including but not limited to emergency numbers.
• Incompatibility: Due to its nature, VoIP service may not compatible with non-voice communication equipment, including but not limited to, some home and office security systems that are set up to make automatic calls, fax machines. In addition, supplier does not warrant that the service will be compatible with all broadband services.
• Customer's responsibility: Customer shall be responsible for notifying any user of the nature and the limitation of VoIP services.

22. Liability for the services

Supplier's liability under this Agreement or in connection with its performance is expressly limited to the express provisions of this Agreement and to the conditions set out in this article. Supplier makes no express or implied warranties, representations or endorsements regarding any merchandise, information, products or services provided in connection with or contemplated by the performance of the Agreement. Except for gross negligence and intent, Supplier shall not be liable to any User of the Services for any direct or indirect loss or damage (including economic losses or any loss of profit) arising out of or in connection with the performance of its obligations under this Agreement. Under no circumstances shall Supplier be liable for any indirect or consequential damages, including but not limited to damages that result from the Users' use of or inability to access any part of the product or User's reliance on or use of information, services merchandise provided on or through the Service or damages that result from mistakes, omissions, interruptions, loss, theft, or deletion of files, errors, defects, delays in operation, or transmission, or any failure of performance. Absolutely no component of these General Terms and Conditions is aimed at excluding or limiting the liability of NAKA for death or personal injury as result of intentional act or omission, or NAKA. The liability of NAKA, on any possible basis, towards the Customer or towards others that claim liability via the Customer, subject to the provisions in below articles, restricted to, at the choice of NAKA, is: (i) reimbursement from direct loss to not more than the amount of the last monthly charges incurred by Customer for the Services, or (ii) having the Services provided once more at the expense of NAKA.

23. Warranty and liability for the Products

Supplier's Products are warranted to be free from defects in materials and workmanship and to meet the applicable specifications when tested. THE FOREGOING IS IN LIEU OF ANY OTHER WARRANTY, EXPRESS, IMPLIED OR STATUTORY, INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, ALL OF WHICH OTHER WARRANTIES ARE HEREBY EXPRESSLY DISCLAIMED. The liability of Supplier under this warranty is limited solely in replacing, or repairing, or issuing credit (at the discretion of Supplier) for such Products that are or become defective within 14 (fourteen) days after the date of the first use of the product. The Supplier will not be liable under this warranty unless (i) Supplier is promptly notified in writing by Customer upon discovery of defects, (ii) the return of the defective unit is received by Supplier for adjustment no later than 14 (fourteen) days following the date of first use, and (iii) Customer has duly complied with this Section and the Return process defined by Supplier (iv) Supplier‘s examination of such unit shall disclose, to its satisfaction, that such defects or failure have not been caused by misuse, neglect, improper installation, repair, alteration or accident. IN NO EVENT SHALL SUPPLIER BE LIABLE TO CUSTOMER FOR ANY KIND OF INDIRECT DAMAGE, SUCH AS BUT NOT LIMITED TO ANY LOSS OF USE, LOSS OF PROFIT OR CLAIMS OF ANY THIRD PARTY BASED UPON A CLAIM FOR BREACH OF WARRANT.

CHAPTER V: DURATION AND TERMINATION OF THE AGREEMENT; FINAL DISPOSITIONS

24. General

The duration of this Agreement is until the termination of Customer's account. In any case, this agreement may always be terminated:

• by either Party, upon written notice, if the other Party makes an arrangement or composition with its creditors generally or makes an application to a court of competent jurisdiction for protection from its creditors generally or a bankruptcy order is made against the other Party or a resolution is passed by it for its winding up, a court of competent jurisdiction makes an order for its winding up dissolution, an administrator order is made in relation to it or receiver is appointed over (or an encumbrance takes possession of or sells) any of its assets;
• by Supplier, upon written notice, if Supplier's license to provide the Services foreseen under this Agreement, which affects the exercise of rights or performance of obligations under this Agreement, is revoked or terminated for any reasons (and not simultaneously replaced);
• by Supplier, on written notice, if there is a material or substantial change in ownership of Customer; or
• other grounds for early termination may have been foreseen elsewhere, as well as other modifications of the contractual relationship.

25. Service Amendments

NAKA may at any time modify parameters of its services to implement new technology and offer additional services or reduce the range of services offered.

26. Service Suspension

NAKA may at any time immediately suspend all or part of the Services it provides until further notice without incurring any liability:

• if it is obliged to comply with an order, instruction or request of Government, or emergency services organisation, or other competent administrative authority;
• it needs to carry out work related to exceptional upgrading or maintenance of its facilities where those facilities must cease operation at or about the time;
• in order to prevent damage or degradation of NAKA's contracting party's network integrity which may be caused by whichever reason;
• for a violation of NAKA's acceptable use policy or for other behaviour that in NAKA's reasonable discretion may be deemed to be illegal;
• in order to protect NAKA, at its sole discretion, from legal liability which relates to a breach of obligation and/or warranties by Customer; or
• in case of notifications or signs of fraud or abuse of service.

27. Miscellaneous

• Waiver: Failure by Supplier to enforce any of its rights under this Agreement shall not be taken as or deemed to be a waiver of that right nor shall it deprive that party of the right to insist on adherence to that term at some other time.
• Modifications: NAKA reserves the right to change the GTCs and other contractual provisions at any time. In case (i) the Agreement has been entered into for an undetermined period of time and (ii) Customer is considerably prejudiced by any such modifications, Customer shall be entitled to terminate the Agreement as per the date the modifications come into effect. The right of termination expires with the coming into effect of the modifications.
• Assignment: Customer may not wholly or partly assign or pledge its rights and/or obligations hereunder to any third party, except with the prior written consent of Supplier. Such consent will not unreasonably be withheld or delayed.
• Change of Ownership: Should Customer undergo a significant change of ownership or control it shall notify Supplier in writing as soon as practicable after such change.
• Entirety: The Agreement supersedes any and all other agreements, oral or written, between the Parties with respect to the subject matter hereof. Both Parties acknowledge that they have not entered into the Agreement in reliance on any representation made but not embodied in the Agreement.
• Severability: If any provision of this Agreement shall be held to be invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining provisions shall in no way be affected or impaired. In such a case, the Parties agree that the particular terms or conditions in this Agreement which might be ruled by any competent authority as illegal, void, unenforceable or invalid shall be replaced by terms and conditions expressing the stipulations as close as possible to the original terms and conditions by only removing the existing obstacle.

28. Governing Law and Competent Jurisdiction

This contractual relationship shall be subject to the application of the Substantive Swiss Law, excluding the Vienna Convention on Contracts for the International Sale of Goods, dated April 11, 1980. The exclusive place of jurisdiction for all disputes arising out of or in connection with this agreement shall be Zurich, Switzerland subject to mandatory places of jurisdiction under federal law.

This document was last amended on May 24, 2018.

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