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General Terms & Conditions

INTRODUCTION
1. General
2. Definition of NAKA’s Services and Products
CHAPTER I: NAKA’S SERVICES IMPLEMENTATION
3. General
4. Customer’s general Obligations
5. Price and Invoice
6. Payment terms
7. Fair Use Policy
8. Relationship of the Parties
9. Publicity
10. Intellectual Property Rights
11. Trademarks and other intellectual Property Rights
CHAPTER II: SIM CARD USAGE AND LOGISTIC
12. Ordering, Delivery
13. Sim Card Expiry
14. Registration
15. Defect Check & Return Process
CHAPTER III: SERVICING END USERS
16. Servicing End Users
17. Passing on Warranties and Disclaimers
CHAPTER IV: COMPLIANCE WITH LAW AND REGULATIONS
18. Compliance
19. Consumer
20. Compliance as to Registration
21. Usage of the Service
22. Indemnification
CHAPTER V WARRANTIES AND LIABILITY
23. As to the Services
24. Specific Conditions for Provisioning VoIP Service
25. Liability for the Services
26. Warranty and Liability for the Products
CHAPTER VI: DURATION AND TERMINATION; FINAL DISPOSITIONS
27. General
28. Service Amendments
29. Service Suspension
30. Miscellaneous
31. Governing Law and competent Jurisdiction

INTRODUCTION

1. General

NAKA AG (hereinafter referred to as the “Supplier” and/or “NAKA”) provides the Products and Services and Customer purchases such 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, marketing, promoting, selling distributing or otherwise being active in the sale or the distribution 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” as well as the reseller and community tools, allowing customer to monitor and operates NAKA services. For purposes of these GTCs, the term « product », shall refer, jointly and alternatively, to the SIM cards and the recharges.

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 GTC’s, 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

6. Payment terms

7. Fair Use Policy

SIM card rates and tariffs assume fair usage of the Services by the customer. This includes, but is not limited to maintaining a ratio of outbound chargeable calls to inbound calls of more than 20% on customer’s account. 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. If, after NAKA has contacted customer, customer’s excessive or unreasonable use continues, NAKA may, 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 two weeks written 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. In particular, Customer shall be strictly prohibited to include any mentions or representations regarding the relationship with Supplier, or its product or business, in any document dedicated to Customer’s investor relations or to Distributor’s Initial Public Offering. Distributor may only do such publicity which strictly relates to, and whose purpose is strictly limited to, the sale of Supplier’s product.

10. Intellectual Property Rights

11. Trademarks and other intellectual Property Rights

Customer may resell and market the Communication Services under the brand of its choice. 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

13. SIM Card Expiry

Should the SIM card still not be activated six (6) months 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 first incoming or outgoing call of a user. In the case Customer’s customer and End-users do not use the SIM Card or the call value components over a period of six (6) months, NAKA reserves the right to deduct a charge of EUR 1.00 per month 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 from www.nakamobile. No use shall be defined as no billable transaction per MSISDN over a period of six (6) months in NAKAs Billing System for the SIM. Billing transactions are, but not limited to, SMS sending, SMS reception, inbound call, outbound call.

14. Registration

Customer is obliged to verify the identity of each and every user to which Customer is selling a SIM card, to keep complete records including first name, last name, 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 usual business of Customer 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. Upon Supplier’s request, Customer shall provide proof of the regulation’s framework of the State of its usual business place and prove of compliance thereof.

15. Defect Check & Return Process

Notwithstanding to the applicable Return Process as may be defined by Supplier, Customer shall not accept 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: SERVICING END USERS

16. Servicing End Users

Except if otherwise is expressly agreed upon, Customer shall be responsible for communicating with its customers and users of the service, and for handling complaints and the due referral to Supplier’s Customer Service for trouble reports made by such customers in accordance with the mutually agreed procedure. Customer shall make sure that its customers and users are provided with up-to-date contractual and product literature. Customer shall duly refer to Supplier any facts or acts that would impinge upon Supplier’s rights and obligations when it considers as an experienced and entrusted business agent that Supplier should be put on notice.

17. Passing on Warranties and disclaimers

Customer shall distribute and sell Supplier’s Products and Services with the minimal warranties and disclaimers designated by Supplier and will require all its sub distributors and dealers, as the case may be, to adhere to the same obligations.

CHAPTER IV: COMPLIANCE WITH LAW AND REGULATIONS

18. Compliance

19. Consumers

Customer shall insure that any documentation provided to end users, be in compliance with any local, national and international law applicable to the end users. If needed, Customer shall in particular insure that the above referred documentation, and appropriate modifications and additions to such documentation, be duly translated into the official language of the end users.

20. Compliance as to Registration

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

21. Usage of the Services

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

22. Indemnification

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

CHAPTER V: WARRANTIES AND LIABILITY

23. 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.

24. Specific conditions for provisioning VoIP Service

25. 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.

26. 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

27. General

The duration of this Agreement is stipulated in the Cover contract. Same may be terminated by providing a six-months prior notice for the end of each calendar year. In any case, this agreement may always be terminated:

28. 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.

29. Service Suspension

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

30. Miscellaneous

31. 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.

©NAKA AG All rights reserved www.nakamobile.com 03/2013