BETWEEN: BONA FIDES SOLUTIONS LTD ("BFS"), a company incorporated in England and Wales registered no. 11958241, and the API User ("Counterparty").
A. BFS is engaged in the business of providing mobile telecommunication services to individuals and businesses and has access to ranges of Mobile Numbers for sale.
B. The terms and conditions of this Agreement shall apply to the supply of Mobile Numbers by BFS to Counterpart for resale to third party End Users.
In this Agreement the following words will have the following meanings:
1.1 "Agreement": means these terms and conditions.
1.2 "BFS Affiliate": means (i) any person which from time to time is Controlled directly or indirectly by BFS; (ii) any company in which BFS holds directly or indirectly 50% or more of the shares or voting power, (iii) Bona Fides Solutions Ltd, or (iv) BFS brands and trading names including but not exclusive to "British Numbers" and "plus447".
1.3 "BFS Marks": means the service marks, trademarks, logos, related brands, and other distinctive brand features of BFS as owned by or licensed to BFS from time to time.
1.4 "Business Day": means a day other than a Saturday, Sunday or bank holiday in the United Kingdom.
1.5 "Change of Control": means a change in the entity which Controls a party.
1.6 "Charge(s)": means the charges payable by Counterparty for the Mobile Numbers as set by BFS, on a price list provided by BFS, programmatically through an API, or otherwise as confirmed to Counterparty in writing.
1.7 "Commencement Date": means the date on which the API is accessed.
1.8 "Confidential Information": means the terms of this Agreement, secret or confidential commercial, financial, marketing, technical, know-how, trade secrets and other information relating to BFS or Counterparty, in any form or medium whether disclosed orally or in writing before, during or after the date of this Agreement, together with any reproductions of such information in any form or medium or any part of this information
1.9 "Control" or "Controlled": means in relation to a company, that a company shall be treated as “controlled” by another if that other company (whether directly or indirectly and whether by ownership of share capital, possession of voting power, contract or otherwise) appoints (or is able to appoint) and/or removes (or is able to remove) the majority of the members of the governing body of that company or otherwise controls or has the power to control the affairs and policies of that company.
1.10 "Customer Terms": means UK network providers' standard Pay As You Go (pre-pay) customer terms and conditions or any subsequent contract terms an End User enters into with a UK network provider.
1.11 "Custom Number(s)": means Mobile Numbers requested on a bespoke basis, including by reference to a specific number pattern or sequence, which is not immediately available and is made available asynchronously following a request, whether via the API or otherwise, and which may be identified as such in the relevant Order, including invoices, where marked as "Custom Number(s)".
1.12 "Disclosing Party": means the party to this Agreement disclosing Confidential Information.
1.13 "End User": means an entity (individual or business) to whom Counterparty provides the Mobile Number(s).
1.14 "Gold Number(s)" or "Memorable Number(s)": means Mobile Numbers that are considered more desirable or memorable due to their pattern, sequence, or repetition, which is available for immediate allocation and supply via the API or otherwise, and which may be identified as such in the relevant Order, including invoices, where marked as "Gold Number(s)".
1.15 "Intellectual Property Rights": means all intellectual property rights, including without limitation, patents, registered designs, trademarks and services marks (whether registered or not), rights in the nature of unfair competition rights, copyright, database rights, design rights, and all similar property rights including those subsisting (in any part of the world) in inventions, designs, drawings, performances, computer programs, semi-conductor topographies, confidential information, business names, goodwill and the style and presentation of goods or services and applications and the right to apply for protection of any of the above rights.
1.16 "Insolvency Event": means when a person is unable to pay its debts (within the meaning of section 123(1) of the Insolvency Act 1986) or an order is made or a resolution passed for its liquidation, winding-up or dissolution (otherwise than for the purposes of a solvent amalgamation or reconstruction) or an administrative or other receiver, manager, trustee, liquidator, administrator or similar officer is appointed over it or all or any substantial part of its assets or takes formal steps towards making any kind of composition, compromise or arrangement involving it and any of its creditors, or anything analogous to the foregoing will occur in any jurisdiction.
1.17 "Mobile Number(s) or "MSISDN": means the specified telephone numbers made available to Counterparty by BFS from time to time which fall into two categories - Gold Number(s) and Custom Number(s).
1.18 "Order": means written or programmatic confirmation from Counterparty of the Mobile Numbers it wishes to obtain, having been notified of the Charges, and subject to acceptance by BFS.
1.19 "PAC(s)": means a Porting Authorisation Code relating to a Mobile Number that allows the transfer of a Mobile Number between network providers.
1.20 "Payment Due Date": shall have the meaning given to it in Clause 5.
1.21 "Port" or "Porting": means the process of transferring a mobile telephone number from BFS to an alternative telecommunications network services provider.
1.22 "Receiving Party": means the party to this Agreement to whom Confidential Information is disclosed.
1.23 "USIM(s)": means a UK Universal Subscriber Identification Module card programmed with a Mobile Number, as identified in an Order, which enables access to network services subject to the network providers' Customer Terms.
1.24 "UK Network": means the UK mobile network used by BFS from time to time.
1.25 In the Interpretation of this Agreement, unless the context otherwise requires:
1.25.1 headings are for reference only and do not affect its meaning;
1.25.2 references to clauses or schedules are to clauses of and the schedules to this Agreement;
1.25.3 the singular shall include the plural and vice versa;
1.25.4 references to a 'person' include any person, firm, company, corporation, government, state or agency of a state or any association, trust or partnership; and
1.25.5 any reference to any statute or legislation shall be deemed to include any amendments, re-enactments or replacements unless otherwise stated.
2.1 The terms and conditions set out in this Agreement are the only conditions upon which BFS is prepared to deal with Counterparty in respect of Counterparty reselling Mobile Numbers provided by BFS and they shall govern the Agreement and any Order issued under this Agreement to the entire exclusion of all other terms or conditions, including but not limited to any conflicting terms on any Order document.
2.2 This Agreement does not create an exclusive relationship between BFS and Counterparty. BFS is free to partner with, source from, supply to, or resell for any third-party Mobile Numbers or associated services that are the same or are substantially the same as those described in this Agreement.
2.3 BFS does not guarantee that any particular Mobile Number, or any minimum volume of Mobile Numbers, will be available to Counterparty.
3.1 USIMs and PACs are supplied on a UK Network, and the use of USIMs, PACs and the associated Mobile Numbers while they remain linked to a UK Network provider is subject to the network providers' Customer Terms in addition to the terms of this Agreement.
3.2 Counterparty shall only provide Mobile Numbers to individual or business End Users and shall not provide Mobile Numbers to any operator of network services or telecommunications networks. However, Counterparty may obtain a PAC code from BFS or Port Mobile Numbers on behalf of an End-User.
3.3 BFS shall not be liable for any cancellation, expiry or re-patriation of a Mobile Number arising as a result of (i) the action or inaction of Counterparty or third party End User, where the USIM or PAC is linked to a UK Network provider and where in accordance with the network providers' Customer Terms; (ii) for any reason outside BFS's reasonable control; or (iii) following the Porting of a Mobile Number to a third party mobile telecommunications network
4.1 Counterparty shall pay the Charges in advance of delivery of the USIMs or PACs in accordance with Clause 5.
4.2 BFS will deliver the PACs to the email of Counterparty within ten (10) working days of receiving cleared payment of the Charges for Gold Numbers and within twenty (20) working days of receiving cleared payment of the Charges for Custom Numbers, or otherwise within a reasonable time if a USIM is requested for delivery to a UK premises.
4.3 BFS may add a reasonable delivery charge to any Order.
5.1 Counterparty shall pay all Charges (without any deduction or set-off) within seven (7) days of the date of BFS's invoice (the 'Payment Due Date').
5.2 The Charges are inclusive of VAT which shall be paid by Counterparty at the prevailing rate.
5.3 Once a Charge has been paid in respect of an Order raised under this Agreement, there shall be no right of return, refund, reversal, or cancellation in respect of the Mobile Number(s) to which that Order relates.
5.4 If BFS has not received payment of the Charges by the Payment Due Date, and Counterparty fails to remedy its failure to pay the Charges, BFS shall be entitled, at its sole discretion, to (i) terminate the Order to which the outstanding Charges relate or (ii) in the event that the USIMs or PACs have been supplied to Counterparty prior to payment of the Charges, require the return of the USIMs or provision of valid PACs by Counterparty, and cancel or re-allocate the Mobile Numbers to which the outstanding Charges relate.
6.1 All Intellectual Property Rights in the BFS Marks and the Confidential Information of BFS shall remain the absolute property of BFS and/or its third-party licensors.
6.2 Nothing in this Agreement shall permit Counterparty to use the BFS Marks without BFS's prior written consent, and any such consent shall be subject to Counterparty's compliance with any brand guidelines or further instructions provided by BFS from time to time.
6.3 Counterparty and BFS undertake(s) not to do any act which may jeopardise, limit, interfere with or in any way infringe BFS's Intellectual Property Rights, goodwill, or reputation of the Parties.
6.4 For the purposes of Clauses 6.4 to 6.12 inclusive, "API Software" means the British Numbers API and all related software, materials and technology made available or accessible by BFS from time to time, in any medium or form, including without limitation source code, object code, bytecode, scripts, configuration, schemas, build and deployment definitions, container images, data models, and all technical documentation, specifications, OpenAPI or Swagger descriptions, README or similar developer documentation, examples, test fixtures, and tooling supplied in connection with such software, whether delivered via repository access, build artefacts, network transmission, screen display, API response, or otherwise.
6.5 Copyright and all other Intellectual Property Rights in and to the API Software are and shall remain the exclusive property of BFS and/or its licensors. All rights are reserved. Nothing in this Agreement transfers ownership, equitable title, moral rights (where recognised), or co-authorship to Counterparty. No licence to the API Software is granted to Counterparty except as expressly stated in Clause 6.7.
6.6 Counterparty shall not, and shall procure that anyone acting on Counterparty's behalf or with access facilitated by Counterparty (including employees, contractors and group undertakings) shall not, directly or indirectly: (i) copy, reproduce, mirror, cache for redistribution, scrape, publish, publicly display, perform, broadcast, or redistribute the API Software in whole or in part, except for transient technical copies strictly necessary to send and receive lawful HTTP(S) requests to the British Numbers API in accordance with this Agreement; (ii) sell, rent, lease, loan, sublicense, or otherwise commercialise the API Software; (iii) prepare derivative works, adaptations, translations, ports, or merged or combined works based on the API Software; (iv) reverse engineer, decompile, or disassemble the API Software except to the limited extent that mandatory applicable law expressly permits and such permission cannot validly be excluded by contract; (v) remove, alter, or obscure any copyright, trade mark, patent, proprietary, or other legal notices or metadata in or on the API Software; or (vi) use the API Software to develop, train, fine-tune, benchmark, or validate a competing product or service without BFS's prior written consent.
6.7 BFS reserves all rights under any patents (including rights to apply for patents) and under any other Intellectual Property Rights relating to the API Software and associated technology. Except for the limited right to use the British Numbers API over the network solely as BFS authorises in writing for the purposes of this Agreement (ordering and supporting supplied Mobile Numbers), no express or implied rights are granted under any patent, copyright, trade secret, or other Intellectual Property Right in the API Software, and any such rights are expressly withheld.
6.8 Counterparty acknowledges that the API Software is proprietary and confidential. Counterparty shall protect the API Software using no less than reasonable care and in any event no less protective measures than it applies to its own confidential information of similar importance.
6.9 To the fullest extent permitted by applicable law, the API Software is provided or made accessible "as is" and "as available" only in connection with lawful use of the British Numbers API under this Agreement. BFS disclaims all warranties and conditions relating to the API Software, whether express, implied or statutory, including implied warranties of satisfactory quality, fitness for a particular purpose, accuracy, non-infringement, and quiet enjoyment, except where such exclusion is prohibited by law.
6.10 If Counterparty provides BFS with suggestions, feedback, ideas, bug reports, or code relating to the API Software, Counterparty grants BFS a perpetual, worldwide, irrevocable, royalty-free, sublicensable licence to use, disclose, reproduce, modify, and otherwise exploit such materials for any purpose without obligation or accounting to Counterparty, unless otherwise agreed in a signed writing.
6.11 Counterparty shall promptly notify BFS if it becomes aware of any unauthorised access to, use of, copying of, or distribution of the API Software and shall co-operate reasonably with BFS in investigating and remedying the same.
6.12 The obligations in Clauses 6.4 to 6.12 shall survive termination or expiry of this Agreement for so long as the API Software remains confidential or protectable at law.
7.1 This Agreement shall come into force on the Commencement Date and shall remain in force unless terminated in accordance with this Clause 7.
7.2 Either Party may terminate this Agreement on giving not less than 30 days' written notice to the other.
7.3 Either party may terminate this Agreement with immediate effect by giving written notice to the other if:
7.3.1 the other is in material breach of its obligations under this Agreement and either such breach is incapable of remedy, or the breach continues unremedied for 30 days after receiving written notice requiring it to remedy such breach;
7.3.2 the other suffers an Insolvency Event;
7.3.3 termination is permitted under Clause 11 (Force Majeure); or
7.3.4 if any licence, permission or authorisation necessary for the supply of the USIMs, PACs and/or Mobile Numbers by BFS is revoked.
7.3.5 if any licence, permission or authorisation necessary for the sale of Mobile Numbers by Counterparty is revoked.
7.4 BFS may additionally terminate this Agreement or any outstanding Order with immediate effect by giving written notice to Counterparty if Counterparty:
7.4.1 breaches Clause 3.2 of this Agreement;
7.4.2 undergoes a Change of Control or sells or transfers a substantial part of its business;
7.4.3 does not accept any variations to this Agreement proposed by BFS in accordance with Clause 13; or
7.4.4 acts in a manner calculated or likely to bring BFS or any BFS Affiliate into disrepute.
7.5 On termination or expiry of this Agreement for any reason:
7.5.1 Counterparty must immediately pay in full all sums owed by Counterparty to BFS that have accrued at the date of termination (whether or not the subject of an invoice) such as unpaid Charges accrued on fulfilled Orders or active subscriptions; and
7.5.2 BFS may terminate any unfulfilled Order(s) placed by Counterparty without liability or prior notice.
7.6 In the event of termination resulting from a breach of this Agreement by Counterparty, where an Order has been raised or a Charge has become payable under this Agreement and such Charge has not been paid when due, BFS may, at its discretion, reclaim the relevant Mobile Number(s) and/or require the Counterparty to return such Mobile Number(s) to BFS, including by providing valid PACs, and may cancel or re-allocate the affected Mobile Number(s).
7.7 The rights and remedies of BFS under this Clause 7 are without prejudice to any other rights or remedies BFS may have under this Agreement or otherwise.
Counterparty shall indemnify BFS against all liabilities, costs, expenses, fines, damages and losses (including any direct or indirect consequential losses, loss of profit, loss of reputation and all interest, penalties and legal and other reasonable professional costs and expenses) suffered or incurred by BFS where arising out of or in connection with any breach by Counterparty of Clauses 3 (Conditions of Supply and Use), 6 (Intellectual Property) and 10 (Confidentiality and Data Protection)
9.1 Nothing in this Agreement will exclude or limit either party's liability for (a) fraudulent misrepresentation; (b) death or personal injury caused by its negligence; (c) any breach of the undertakings implied by section 12 Sale of Goods Act 1979 or section 2 Supply of Goods and Services Act 1982; (d) liability under Clause 8 (Indemnity); or (e) any other liability which it is not lawfully permitted to exclude or limit.
9.2 Subject to Clause 9.1:
9.2.1 neither party shall be liable to the other, whether in negligence, breach of contract, misrepresentation or otherwise, for: (i) loss or damage incurred by the other party as a result of third-party claims; (ii) loss of profit, goodwill, business opportunity or anticipated saving; or (iii) indirect or consequential loss or damage; and
9.2.2 BFS's liability in respect of any loss or damage suffered by Counterparty arising out of or in connection with this Agreement shall not in any event exceed the total Charges paid for the Order which is the subject of the claim.
10.1 Each party undertakes to keep confidential any Confidential Information disclosed to it by the other party and to use the other party's Confidential Information solely for purposes related to this Agreement.
10.2 The Receiving Party shall not disclose, copy, reproduce or distribute Disclosing Party's Confidential Information to any person, except:
10.2.1 with the prior written consent of Disclosing Party;
10.2.2 to its employees, professional advisors, consultants and authorised representatives (including to such persons representing its group undertakings), but only to the extent that disclosure is necessary for the purposes related to this Agreement; or
10.2.3 where disclosure is required by law, by a court of competent jurisdiction, by the rules of any stock exchange or by the mandatory requirements of another appropriate regulatory body, provided that all reasonable steps to prevent such disclosure will be taken, the disclosure will be of the minimum amount required, and the Receiving Party consults the Disclosing Party first on the proposed form, timing, nature and purpose of the disclosure.
10.3 The obligations under Clauses 10.1 and 10.2 will not apply to Confidential Information:
10.3.1 to the extent it is or becomes generally available to the public other than through a breach of this Agreement; or
10.3.2 which the Receiving Party can demonstrate was in its lawful possession prior to receipt from the Disclosing Party and which had not previously been obtained from the Disclosing Party or another person under an obligation of confidence; or
10.3.3 which subsequently comes into the possession of the Receiving Party from a third party who does not owe the Disclosing Party an obligation of confidence in relation to it.
10.4 The confidentiality obligations set out in this clause 10 shall remain in force for a period of five years from the date of termination or expiry of this Agreement.
10.5 Counterparty shall take appropriate technical and organisational measures against unauthorised or unlawful processing of any "Personal Data" (as defined in the Data Protection Act 1998) provided to it by BFS and shall comply with such other applicable relevant data protection legislation as may be in force from time to time.
11.1 Neither party shall be liable for failure to perform its obligations under this Agreement if, and only to the extent that, such failure is not caused by and the effects are beyond the reasonable control of the affected party, including because of any act of God, fire, flood, lightning, war, revolution, act of terrorism, riot or civil commotion.
11.2 If the event that the force majeure event described above continues for longer than 30 days then the unaffected Party may at the expiry of such 30-day period, provided the event is still subsisting, give notice in writing to the affected Party terminating this Agreement with immediate effect.
This Agreement sets out the entire agreement and understanding between BFS and Counterparty with respect to its subject matter. All other terms, expressed or implied by statute or otherwise, are excluded to the fullest extent permitted by law.
BFS may introduce variations to this Agreement on 30 days' notice to Counterparty. No variation to this Agreement shall take effect unless agreed by both parties in writing.
Counterparty shall not disclose in its publicity material or otherwise the existence of this Agreement or the terms of its relationship with BFS without the prior written consent of BFS.
Counterparty shall not sub-contract or assign its obligations under this Agreement to any third party without BFS's prior written consent.
16.1 No waiver of any of the terms of this Agreement shall be valid unless in writing and signed by or on behalf of BFS and Counterparty.
16.2 No failure or delay by a party to exercise any right or remedy provided under this Agreement or by law shall constitute a waiver of that or any other right or remedy, nor shall it prevent or restrict the further exercise of that or any other right or remedy.
A person who is not a party to this Agreement or a permitted assignee has no rights under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of this Agreement.
The invalidity or unenforceability of any provision (or any part thereof) of this Agreement shall not affect the validity or enforceability of the remainder of this Agreement.
19.1 Any notice or other communication to be given under this Agreement shall be in writing and signed by or on behalf of the Party giving it and shall be served exclusively by email.
19.2 Notices shall be sent to the email address used by the relevant Party to execute this Agreement, as evidenced in the electronic audit trail generated upon successful execution of this Agreement by both Parties, unless and until a replacement email address is notified in writing in accordance with this clause.
19.3 Any notice served by email in accordance with this clause shall be deemed received at the time of successful transmission, as evidenced by the sender's email system, provided that no automated delivery failure notification is received.
Each of BFS and Counterparty are independent entities. Nothing in this Agreement shall render BFS or Counterparty an agent of the other, and neither party shall hold itself out as an agent of the other.
Any provision of this Agreement which expressly or by implication is intended to come into or remain in force on or after termination shall continue in full force and effect notwithstanding any such termination.
The construction, validity and performance of this Agreement and any dispute relating to its subject matter shall be governed by the laws of England and Wales and BFS and Counterparty hereby submit to the exclusive jurisdiction of the courts of England.