Terms and Conditions
GENERAL TERMS AND CONDITIONS
Scope area:
1 The following general terms and conditions shall apply to any Customer of use of the Service subject of a subscription and/or Service agreement entered into between Premium Sky Tel Limited. and the Customer.
Definitions:
2 For the straight interpretation of this General terms and conditions and the relevant Service/s agreement/s the definitions given below shall be treated as binding for the Provider and the Customer:
i ”Agreement” or “Service agreement” means a subscriptions to the Service and/or an agreement entered into between PST and the Customer, subject to the terms herein.
ii “Carrier” means national telephone carrier or another supplier for telephone Numbers and connections.
iii ”Code of Conduct” means any code of any independent body approved for the supervision of telephone information services recognized by the different countries where the services are provided;
iv ”Customer” means individual or entity subscribed for the Service based on an individual Service agreement and/or on a subscription only.
v “FAQ” means the section Frequently asked questions published to the PST internet billing platform where PST publish general information about the proceedings, the numbers, the accounts creation and the subaccounts, the Service, the statistics, the rates, the payments, the invoicing, the destinations and others that shall be treated as General provisions to this Agreement.
vi ”Intellectual Property Rights” means any patent, registered design, registered trade or service mark, copyright, design right, semiconductor topography right, know-how or any similar right exercisable in any part of the world including any application therefore;
vii “Minimum amount of payment” means the considered rules for minimum amount that can be paid to Customer as they are currently described in FAQ.
viii ”Numbers” means the premium rate, non-geographic, geographic or SMS Numbers allocated to the customer;
ix “Order Confirmation” means PST’ confirmation on any future order from the customer. Every order confirmation will become part of this contract;
x ”Rates” means the payouts or fees specified in order confirmations where applicable;
xi “Secured e-mail address” means an encrypted or non-encrypted e-mail address where messages or documents can be sent to, binding the customer.
xii “Service agreement” means the individual contract adopted by PST as inseparable part of these General terms and conditions which to be signed solely by the Customer for the Service subscription.
xiii “Subscription” means technical subscription on the Provider’s platform and/or digital or non digital signature and/or digital or non digital given of consent for the stepping in the Service agreement.
xiv “Traffic” means calls generated on the Numbers PST provides to the Customers
xv “Premium Sky Tel Limited.” or “PST” means company Premium Sky Tel Limited. registered in Hong Kong under number 2029024 with registered office in 604, Tower A, New Trade Plaza, 6 On Ping Street, Shatin, N.T., Hong Kong, herein called only PST
xvi “Provider” means the company PST that provides the Service to the Customers.
xvii “Provider’s platform” means encrypted virtual site platform where for the Customer will be available the Service under personal subscription.
xviii “Services” means Premium Services provided by PST for telephony network services in relation to the provision of Premium Rate Services, non-geographic and geographic Numbers and International Premium rate Numbers and a technology gateway in relation to the provision of SMS services and voice services as required by the relevant Code Of Conduct in the territory where the Services are being operated.
Subject of the Service Agreement:
3 Having conducted all necessary due diligence in relation to the Customer, PST provides and the Customer accepts the Services, subject to and in accordance with the terms of the Service agreement and/or by means of single Subscription.
Obligations for the PST:
4 Under the signature of the Agreement PST will provide to the Customer trough a secured e-mail address: both user name and password access to the PST internet platform.
5 PST shall allocate to the Customer the Numbers subject of the Agreement together with the order confirmation.
6 PST shall provide forward incoming calls to geographic Numbers or via IP and pay the rates specified in the order confirmation.
7 PST will provide statistical data about call volume and minutes, generated by PST’ or the carriers systems. Statistics are information only. The carrier’s bill is the basis for the bill issued by PST.
Obligations for the Customer:
8 The Customer shall provide services to the callers using the Numbers allocated in the order confirmations. If Customer provides services to PST they should be mentioned in Addendum according to this contract.
9 The geographic Numbers or IP details have to be provided by the customer.
10 The Customer shall be responsible for the quality and delivery of the content of the services and that these services comply with the National Telecommunications Legislation, a Code of Conduct (where applicable) and this agreement.
11 The Customer shall obtain all necessary approvals, permissions or authorizations for use of the Numbers. The Customer shall neither acquire any right, title or interest in the Numbers.
12 The customer shall inform PST about the services rendered.
13 The Customer shall ensure that the services neither infringe any intellectual property right nor are defamatory.
14 The Customer shall indemnify and hold harmless PST from and against any and all losses, demands, claims, damages costs, expenses and liabilities (including any fine imposed by Phonepayplus, OFCOM or any other regulatory body) incurred by PST and arising out of services provided by the Customer including in connection to the quality or content of the services or of marketing or promotional material or from any fraudulent or alleged fraudulent use (including Artificial Inflation of Traffic) of telephone Numbers.
15 Obtaining the access to the Service at PST internet platform trough personal user and password the first thing the Customer has to do is to read the FAQ.
16 By adding Numbers at PST internet platform, the Customer declares:
i that he is fully aware with the FAQ and the way the Service work and
ii that he agree and accept with no waiver including but not only all specific requirements, terms, payment conditions, account forms, technical details, settings etc. as is described in this General terms and conditions and FAQ section.
17 The Customer is fully and independently bears the responsible for his subaccounts toward PST, therefore PST in no circumstance cannot be kept responsible for any reason and by any of the Customers subaccounts.
Rates & payments:
18 PST shall pay the customer in respect of calls to allocated Numbers, according to the rates defined in the order confirmations. Payment will be made at the date set forth in the order confirmation, taking into consideration the Minimum amount of payment provided in FAQ.
19 All rates mentioned are exclusive of value added tax, with the exception of the information about caller rates, which normally are inclusive VAT.
20 In case of premium rate Numbers ordered PST will pay out the rate agreed upon. Setup costs, monthly fees, routing costs, charge backs and other costs (if applicable) will be deducted from the monthly payment. If the payout is lower than the costs billed the customer agrees to pay the difference within 10 days after issue of the invoice.
21 PST reserves the right to cut or delay the payout if there are chargeback pending or foreseeable and to change the pricing and rates mentioned in this document or in annexes or confirmations upon thirty (30) days after written notice.
22 If retrospective price changes are implanted by the network provider that result in PST having effectively overpaid the customer, then PST reserves the right to deduct amounts from subsequent payouts to address the balance of payments overpaid during the period affected by the retrospective changes.
23 PST will not pay the customer for traffic which is not paid by the carrier for any reason, for which event appropriate written documents must be produced by PST to prove this.
24 PST shall arrange all payments pursuant to this Agreement to the given Customer’s bank account.
25 The Customer shall be solely responsible to mention in the Service agreement and/or Subscription correct and valid bank details for: Beneficiary; Beneficiary Address; Beneficiary Country; Bank; Bank Address; Bank Swift; Bank Account (IBAN); Intermediary Bank (if applicable); Intermediary Bank details (if applicable).
26 If the Customer provides bank details with missing items or Customer’s bank detail were wrong by Customers omission or mistake, therefore the latter cannot claim from PST and PST cannot be kept responsible for any damage and/or compensations nor for the wire transfer its self.
27 PST shall arrange all payments pursuant to this Agreement under the following payment schedule considering the rules for Minimum amount of payment as is described in FAQ:
i weekly 7/3 schedule: Traffic is billed from Monday to Sunday and paid 1 day after issuing of invoice
ii weekly 7/7 schedule: Traffic is billed from Monday to Sunday and paid 7 days after issuing of invoice
iii biweekly 15/15: Traffic is billed for 1st and 2nd half of the month and paid after 15 days
iv 30 days EOM schedule: Traffic is billed from 1st to end of month are paid 30 days after end of month
v 45 days EOM schedule: Traffic is billed from 1st to end of month are paid 45 days after end of month
vi 60 days EOM schedule: Traffic is billed from 1st to end of month are paid 60 days after end of month
28 PST cannot be responsible for any payment delay whenever the payment has been arranged in the due payment schedule. Any delay caused by any third party and or transferor, intermediary or beneficiary bank shall be assumed as Customer risk.
29 The payment schedule will not be binding for PST in case of claims for infringement, open dispute, investigations for infringement and or any other relevant reasons by means of claims for losses, demands, claims, damages costs, expenses and liabilities (including any fine imposed by Phonepayplus, OFCOM or any other regulatory body) incurred by PST and arising out of services provided by the Customer including in connection to the quality or content of the services or of marketing or promotional material or from any fraudulent or alleged fraudulent use (including Artificial Inflation of Traffic) of telephone Numbers.
30 Missed call Traffic, Traffic generated by hacked PBX systems, SMS generated Traffic or any kind of traffic generated by fraudulent activities shall not be subject of payment.
Terms & termination:
31 The Service agreement shall commence from the date of Subscription and/or Service agreement acceptance and shall remain in force until either party submits a written notice of termination of at least ninety (90) days in advance.
32 Either party may terminate or suspend this agreement at any time by giving written notice to the other where defaulting party has committed a breach of this agreement and fails to remedy such breach within 30 days of notice receipt.
33 Termination, suspension, or expiry of this agreement for any reason shall be without prejudice to any of each party’s respective rights and obligations accruing up to and including the date of such termination, suspension or expiry.
34 Neither party shall be held to be in breach of its obligations under the agreement nor be liable to the other party for any loss or damage that may be suffered by the other party due to force majeure.
Liability:
35 The service, its operation, its use and the results of such use shall be performed in a workmanlike manner.
36 To the fullest extent permissible pursuant to applicable law, PST disclaims all warranties express or implied, including, but not limited to, implied warranties of merchantability and fitness for an particular purpose, in relation to the service, its use and the results of such use.
37 Without limiting the foregoing, PST specifically disclaims any warranty
i that the service will be uninterrupted or error-free,
ii that defects will be corrected,
iii that there are no viruses or other harmful components,
iv that the security methods will be sufficient regarding correctness, accuracy, or reliability
The Customer shall provide proof that he has taken care correspondingly and no dialer or such services shall apply to the Numbers. As a dialer is considered a program / routine or parts of it, which directly or indirectly establishes or controls a dial-up-access, analog or digital PBX at which the number and routine used are alleged by the routine itself. A dialer-routine is also considered such a routine or partial routine, which directly effects or modifies the configuration of the telecommunication devices of the user in terms of establishing the telecommunication connections illegally.
38 If however dialers are installed, with or without the knowledge of the Customer (or subaccounts), PST shall be entitled to withdraw not only numbers affected by dialers, but all numbers, subject of contract and to retain all payments, including with retrospective effect.
39 In the event of systematic commercial use of volatile margin formations in international interswitching markets by the Customer (or subaccounts) and their judicial or official persecution (strong suspicion suffices), or legal motions by the Customer or PST or Third Parties, the Customer shall indemnify PST in whole against it. In particular, the Customer shall take the full sole responsibility towards PST regarding the lawfulness of such commercial use. Complaints respectively queries and legal steps against PST, made by final users, companies, authorities or courts of justice, based on at least alleged unlawfulness of such commercial use, shall be without exception taken-over by the Customer and he shall indemnify PST in full, and the following is agreed.
40 Not PST, but the Customer alone bears the responsibility regarding the content as well as the legal proceedings for such complaints, queries and motions. The Customer has to face such legal proceedings and to bear the risk of litigation and the costs of litigation. The Customer must provide for all documentation required for the litigation. Filing of legally binding declarations towards final users, companies, authorities or courts of justice, insofar procedurally possible, shall be, after the prior approval by PST, the responsibility of the Customer. The Customer is obliged to cooperate in finding an amicable solution and in case of need to provide such information and to pre-formulate it correctly.
41 PST is entitled in the event of substantiated suspicion of a breach of legal or contractual provisions or of unlawfulness of commercial use of volatile margin formation on international interswitching markets by the Customer or by his subaccounts to retain payment of all amounts under this Agreement to the Customer, even retrospectively, or to fully keep said money until a valid official decision (which may not be contradicting each other, as the case may be) confirms the legality. The Customer undertakes in such cases to waive raising claims against PST, resulting from the interruption or retaining in question.
42 All rights of PST hereunder and all obligations of the Customer (like especially, but not limited to, the indemnification of PST, payment of penalties, entering of litigation, bearing of costs, bearing of risk, debt waiver, etc.) continue to exist even in the case, when:
i the service rendered indeed does not correspond to the service required by the final user/customer, or
ii the service does not constitute a perceptible sense to the caller or a noticeable sense before the call, or
iii the service is not rendered completely or permanently, or
iv when calls take place on a regular basis, which are not connected to the service, or
v there are clues (e.g. in the Call Detail Record or on the occasion of a Billing or coming from a Third Party) for calls, that show signs of automated or manually and systematically generated traffic, originating from single callers (CLIs) or groups of callers (CLIs), or from whoever it is being transited, or
vi there are hints for multiplication of advance payments/advance performance by any person/s that are unusual or immoral for the market, or
vii exist clues that traffic designed for the Numbers is not being rerouted in such a way, so that it can be terminated by PST on the Number as designed, or
viii in the event of criminal or official police investigations against the Customer or his legal representatives, or
ix the service has not been expressly authorized by PST
43 This applies without limitation also in the event that the service or the traffic has not been rendered or delivered by the Customer; in this case the Customer cannot escape his obligations under this Agreement towards PST, especially under reference to subaccounts or Third Parties, moreover, PST may assert his rights towards the Customer in full. The Customer thus is towards PST in a position that he would be in, if the Customer would be rendering the service himself, respectively would originate the traffic himself.
44 PST is entitled by any time and without no conditions and limitations form the Customer to request form the later to present any information and if necessary additional proves for the origin of the Traffic, the kind of services provided trough Numbers, Numbers promotion, payment documents and bills for the available promotions and generated Traffic.
No waiver:
45 Failure by either party to exercise or enforce any right conferred by the agreement shall not be deemed to be a waiver of any such right nor operate so as to bar the exercise or enforcement thereof or any other right on any later occasion.
Notices:
46 Any notice, other document which may be given under the agreement shall be deemed to have been duly given if left at or sent to the secured e-mail address or to the usual or last place of business of the recipient party. This is applicable also to notices, invoices or other documents sent to the customer’s secured e-mail address.
Intellectual property rights:
47 The parties’ respective intellectual property rights shall remain the property of whichever creates or owns the same and nothing in this agreement shall be deemed to confer any assignment or license of the intellectual property rights of the other party, save that the intellectual property rights or goodwill in the Numbers shall hereby be vested in or assigned to the Company.
Non-disclosure
48 Both parties agree within their legal possibilities to strictly keep secrecy on all information that has come to their knowledge in the course of work on this Agreement and its implementation. This includes especially the know-how offered, the agreed prices as well as all other provisions and conditions. Non-disclosure agreement survive the contract and each party may be kept responsible for such violation.
Personal data:
49 Both parties undertake to respect the provisions of the Data Protection legislation; insofar PST will be allowed to deliver requested information to that administration who submits legally binding request for such information grounded by the Code of Conduct.
Governing law:
50 This agreement shall be governed by English law (except for conflict of law provisions).
51 The application of the United Nations Convention on the International Sale of Goods is expressly excluded.
Disputes:
52 All disputes or claims arising out of or in connection with this contract including disputes relating to its validity, breach, termination or nullity shall be finally settled under the Rules of Arbitration and Conciliation of the International Arbitral Centre of the Austrian Federal Economic Chamber in Vienna (Vienna Rules) by one arbitrator appointed in accordance with the said Rules. The language to be used in the arbitral proceedings shall be English.
53 The exclusive forum for any actions brought in connection with this agreement shall be in England and the customer consents to such jurisdiction. However, PST, in its sole discretion, can take any legal action against the customer in the country where he has his legal presence, under the law governing this country.
Priority of documents:
54 This General terms and conditions are to be subsequently applicable to the terms and conditions of the Service agreement. However the General terms and conditions have priority toward FAQ section. In case of discrepancy the parties have to follow the priority of the documents but for avoidance of any doubt the Service agreement shall always prevail.
Amendments:
55 The PST may by its discretion to change any terms and conditions that shall be treated as binding for the Customer for any use of Service after the notification of such change. Any change is to be published on the Provider’s platform.
Final notes:
56 This General terms and conditions were adopted by PST on the date 20/01/2014 and will be treated as binding for any subscribed Customer as written above.
57 Integral and inseparable part of these General and conditions will be the Service agreement that subscribed individual or entity sign and subscribe to the PST for Service provision.
Adopted by Premium Sky Tel Limited,
Hong Kong