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Terms and Conditions for Mobile Service Supply
This Agreement (the "Agreement") is concluded between Zariot ("Zariot"), a Romanian legal entity, having its headquarters in Bucharest, 5th District, 99 Carol Davila str., VAT code: RO32270800, and the company/person listed under "Customer name" in the Registration/Order form (the "Customer") and is dated as of the date of checking the "Accept" box of these Terms and Conditions by the Customer, following the placement of the Order Form or on date of the signature of the representative of the Customer.
1. Object of the Agreement
1.1. Zariot has agreed to provide to the Customer the Service and/or Device and/or Mobile Platform connectivity (the "Services") as it was specified in the Order form, in accordance with the Service Plan (the "Service Plan") of the Order, for the agreed upon period of time ("Initial Term"), unless terminated earlier in accordance with this Agreement.
1.2. The provision of the Services is subject to the Terms and Conditions of this Agreement, which Customer undertakes to respect in full and at all times, during the term of this Agreement.
2. Term of this Agreement
2.1. This Agreement is concluded for the Initial Term, as agreed in the Order form.
2.2. Upon expiration of the Initial Term, Zariot will continue to provide you with the Services in accordance with your current Service Plan, at the then prevailing monthly fee, on a monthly basis, should you not decide to terminate this Agreement, according to the provisions of the Termination clause.
2.3. Prior to the expiration of the Initial Term, Zariot may contact you and offer you a renewal Service Plan ("Renewal Offer"). Should you agree with the Renewal Offer, the Services will be extended for a period of time similar to the Initial Term and subject to a renewed Service Plan.
3. Provision of the Services
3.1. Zariot shall provide the Services in accordance with the provisions of this Agreement, it being entitled to offer such Services pursuant to the Certificate issued by the Romanian National Authority for Administrating and Regulation of Communications (ANCOM) on 11.12.2017, under no. SCDASDN35549. The Customer agrees to use the Services only on the terms set out in this Agreement.
3.2. Considering that the Services provided by Zariot are the result of inter-connectivity and roaming agreements carried out with other Mobile Services providers, the Services are offered subject to the continuing right of Zariot to provide such Services, from the Third-Party Service Providers. If at any time, any agreements between Zariot and a Third-Party Service Provider is terminated, and that agreement is not replaced or renewed, Zariot is entitled to stop rendering the Services and terminate this Agreement, and the Customer agrees that it will not hold Zariot liable for any damages, provided that any such termination will be notified in writing thirty (30) days prior to the effective termination.
3.3. Zariot reserves the right to change the provisions of the Services, should the clauses of any of its agreements concluded with a Third-Party Service Provider change, as to require the alteration of the Services. Any such change will be deemed to take place on the date stated in the notice Zariot gives to the Customer regarding any such change.
3.4. Notwithstanding the provisions of clause 3.2., Zariot undertakes to offer the Services using due care and skill and aims to provide the Services error free. However, given the nature of telecommunication systems and taking into consideration its agreements with the Third-Party Service Providers, Zariot cannot guarantee that the Services will be offered continuous or fault free.
3.5. In order for the Services to be provided according to the provisions of this Agreement, the Customer undertakes that all the information you provide to Zariot is accurate at the time of placing the Order and it will be kept up-to-date for the whole duration of the Agreement.
3.6. The Services offered by Zariot are M2M (Machine to Machine) Services, and do not offer access to voice calls, including access to the single European emergency call number 112. The Services are intended solely for the use in connection with devices that support M2M communication and are not to be used in connection with any other type of devices.
3.7. In order for the Services to be provided according to the terms of this Agreement, Zariot will deliver the number of SIM cards ordered in the Order Form (if any) at the address indicated in said Order, within five (5) business days from the moment the order is confirmed. All taxes for the delivery of the SIM cards will be borne by the Customer and those taxes will be included in the first invoice issued to the Customer.
3.8. From the moment the Customer's Order is confirmed, the initial connection term is of maximum seventy-two (72) hours. The Customer will receive notice of the initial connection.
4. Obligations of the Customer
4.1. The Customer undertakes, from the signing date of this Agreement, and throughout the whole duration of the Initial Term and any other supplementary Term and according to this Agreement, to:
4.2. The Customer undertakes to comply with the terms of any license, law or regulation applicable to such use of the Services.
4.3. The Customer is fully responsible for any device and/or equipment used in connection to the Services, whether provided by Zariot or supplied by any other third party. The Customer has to ensure that any such device and/or equipment is technically compatible with the Services and that the device and/or equipment complies and is used in accordance with the applicable law. Zariot will not be liable for the improper use of any device and/or equipment used in connection with the Services. Furthermore, the Customer undertakes that any device and/or equipment used in connection with the Services will not interfere with Simfony's network or with the Services.
4.4. The Customer undertakes not to introduce viruses or other harmful code or procedures to the network of Simfony.
5. Charges for the Services
5.1. The Charges for the Services offered by Zariot are detailed in the Order Form. The charges are fixed throughout the whole duration of the Agreement, unless otherwise amended by both Parties, in writing and prior to any change.
5.2. Notwithstanding the provisions of 5.1., the Charges for the Services can be amended by Zariot unilaterally, upon giving notice to the Customer, should any of the Third-Party Service Providers of Zariot change their pricing policy. The changes will take place starting with the date stated in said notice. Should the charges increase and the Customer not agreeing with the amended Service Plan, it has the right to give notice to Zariot regarding the termination of this Agreement, in writing and with thirty (30) days from receiving notice of any such change.
5.3. The Invoice period is the one stated in the Order Form. The first invoice period will begin on the date of the initial connection and ends at 23:59 on the day before the start of the second Invoice period, as pursuant to the Order Form.
5.4. At the end of each Invoice period, Zariot will issue an invoice to the Customer within five (5) business days from the end of each invoice period. The invoice will be issued electronically and sent at the e-mail address indicated by the Customer in the Order Form. The invoice will be deemed sent at the moment Zariot sends the e-mail containing the invoice, unless there is a communications system failure, which will be recorded as such. Any change of e-mail address on behalf of the Customer is to be notified in writing to Zariot within five (5) business days from the effective change. Zariot is not liable for any change of e-mail address that is not notified in writing to Zariot and Zariot will use the same e-mail address for the delivery of invoices issued, until notified otherwise.
5.5. The first invoice will be generated after the Customer's order is confirmed and will contain all the costs the Customer bears upon placing the Order (e.g. the cost of the SIM cards). The first invoice after activating a SIM will contain the Charges billed at the rate of a full month for the activated SIM(s) in the previous billing cycle.
5.6. All invoices will contain detailed information about the Services rendered, the volume of traffic and any other additional Charges that might be applicable for the Invoice period.
5.7. All invoices will be issued in EUR and all prices will be quoted exclusive of VAT. Where applicable, reverse tax procedures will apply.
5.8. Payment by the Customer of any invoice issued by Zariot is due within fifteen (15) calendar days from the moment the invoice was issued (the "Due Date").
5.9. Payment of any invoice will be made by bank transfer, in the account indicated in the invoices issued by Simfony. The Customer bears the cost of the bank transfer.
5.10. The Customer is fully responsible for any Charges contained in the invoices issued by Zariot and will not be relieved of liability for the overuse of the Services, improper usage of the Services, fraud committed against the Customer or any security breach against the Customer, unless it is a breach of this Agreement by Simfony.
5.11. Zariot has the right to suspend the Services, should any invoice issued to the Customer remain unpaid after the Due Date and following a notice in writing by Zariot that failure to pay the invoice within seven (7) days from the Due Date will cause the suspension of the Services. The Customer will continue to be liable to pay any charges and future invoices issued by Simfony, including for the periods of time the Services were suspended for lack of payment. The Services will be restored after Zariot receives payment of any outstanding amounts of money.
5.12. Zariot will charge penalties, calculated on a daily basis, on any outstanding sums of money that remain unpaid after the Due Date of each invoice. The penalties will be calculated at a rate of twelve (12) % per year.
5.13. Any disputes arising out of the Charges included in the invoices issued by Zariot do not entitle the Customer to suspend payment of any such invoice.
6. Suspension of the Services
6.1. Zariot aims to offer the Services continuous and fault free. However, the suspension of the Services will be possible, for reasons that fall outside the responsibility of the Customer, in the following situations:
6.2. Any suspension of the Services as per art. 6.1. will be done in a way that minimizes the downtime and, where possible, will be carried out at a suitable time in order to affect as little as possible the rights of the Customer.
6.3. Whenever possible, a notice to the Customer will be sent twenty-four (24) hours prior to any suspension of the Services.
6.4. Zariot shall use all reasonable endeavors to ensure that the Services are offered at an uptime of ninety-seven (97) % for any given Invoice period, with the exception of the suspension of Services that have been previously notified to the Customer.
6.5. Should the Customer observe that the uptime stated by Zariot is not offered according to the provisions of art. 6.4., for reasons that are not attributable to the Customer, it can file a complaint at the following address: firstname.lastname@example.org or by calling the telephone number: 0040.314.361.999 (available Mon. – Fri. from 09:00-17:00 EEST). All complaints will receive a written answer within seventy-two (72) hours from the moment they are received by Simfony. The provisions of art. 8.1. are applicable accordingly.
7.1. The Customer acknowledges that Zariot has relied and will rely upon the information, materials, documents and materials (the "Background Information") made available by the Customer upon registration.
7.2. The Customer warrants that the Background Information has been and will be, at the time it is made available, compiled with reasonable skill and care and shall not, either through error or omission, be misleading or inaccurate in any material respect.
7.3. Zariot warrants to the Customer that:
i. Zariot will provide the Services exercising such skill and care as is specified in clause 3.1. and in accordance with the terms of this Agreement;
ii. subject to the provisions of clause 3.2., Simfony has full right, power and authority to provide the Services to the Customer in accordance with the terms of this Agreement.
7.4. If Zariot shall fail to comply with the warranty in clause 7.3., Zariot may at its option take such steps as it deems necessary to either:
i. remedy such failure; or
ii. refund such part of the charges as relates to those Services that it did not provide.
7.5. Any action that Zariot takes as per art. 7.4., at its sole discretion, shall constitute an entire discharge of Simfony's liability for any such failure, and the liability of Zariot under the warranty given through clause 7.3. will not in any case exceed the charges payable by the Customer with regard to the Services that were not delivered.
7.6. Zariot does not offer or use any type of management methodology and/or technical inspection procedures regarding the Services it offers.
7.7. Any other warranty, other than those in art. 7.3. are strictly excluded to the fullest extent permitted by law.
8.1. In the event that the Services, or any part of them, are suspended or made unavailable to the Customer for a period exceeding twenty-four (24) hours continuously, and said suspension is not a result of a Force Majeure event, or an act or omission of the Customer, or an emergency situation, then the Customer will be entitled to a compensation proportional to the period of time the Services were made unavailable, in the form of a discount applicable to the next invoice(s).
8.2. With the exception of the provisions of clause 8.1., Zariot shall not be liable for any type of direct, indirect, consequential or punitive damages, loss of revenue or business, arising from the use of the Services by the Customer.
8.3. The Customer will indemnify, keep indemnified and hold harmless Zariot from and against all costs expenses, liabilities, losses, damages, claims, proceedings or legal costs which Simfony incurs or suffers in respect of a direct or indirect breach or negligent performance or failure in performance by the Customer of the terms of this Agreement, any use or misuse of the Services by the Customer or any breach of the applicable law by the Customer. For the avoidance of doubt, for the purposes of this clause, the term "Customer" shall include the employees and other representatives of the Customer, if there are any.
9. Termination of the Agreement
9.1. The Customer has the right to terminate this Agreement, without invoking any reason, within fourteen (14) work days from checking the "Accept" box of the Terms and Conditions set herein or from the date of the signature of the representative of the Customer, without payment of any penalties or compensation towards Simfony. Should Services be used during the fourteen-day period, the Customer undertakes to pay the fees related to the use of the Services, based on the invoice issued by Simfony.
9.2. After the Initial Term of the Agreement, provided that no renewal was agreed by the Parties, this Agreement may be terminated by any of the Parties, with a prior written notice, given at least thirty (30) days before any effective termination.
9.3. During the Initial Term, or any other extension agreed upon by the Parties, the Agreement may be terminated according to the provisions of art. 5.2.
9.4. Apart from the provisions of art. 9.1., 9.2. and art. 9.3., this Agreement may be terminated before the end of the Initial Term, or any extension agreed upon by the Parties, in the following situations:
i. breach of this Agreement by any of the Parties to this Agreement, should the defaulting Party not remedy said fault within ten (10) business days from receiving notice by the other Party of a material breach of this Agreement;
ii. any of the Parties to this Agreement becomes insolvent and a insolvency procedure is triggered on behalf of any of the Parties;
iii. the Parties decide to terminate the Agreement amicably.
9.5. Any early termination as per art. 9.4. will be subject to a written notice given to the other Party at least ten (10) days before termination becomes effective.
9.6. Zariot can terminate this Agreement unilaterally should any of its agreements with any of its Third-Party Service Providers is terminated and/or altered substantially, in a manner which makes the provision of the Services unviable, as pursuant to art. 3.2. Simfony will not be liable to the Customer for any direct, indirect, consequential or punitive damages, loss of revenue or business, arising from the termination of this Agreement due to this reason.
9.7. Termination of this Agreement will have no effect on the already outstanding obligations between the contracting Parties.
9.8. Nothing in this chapter removes the liability of the Party who culpably caused the termination of the Agreement.
9.9. Following any cause for termination of this Agreement, the Customer will promptly restore to Zariot any and all devices and/or documents provided on loan by Zariot for the performance of this Agreement.
10.1. For the purpose of this Agreement, "Confidential Information" means any and all information whether commercial, financial or technical relating to the business of either of the Parties, including, without limitation, know-how, data, processes, designs, photographs, specifications, software programs, business plans, technical data, market studies, client's private information and samples, whether in written or oral form, which is marked with an indicator such as "Confidential" or "Proprietary" or brought to the attention of the Receiving Party of its confidential nature, but excluding information which:
i. is or comes into the public domain otherwise than by disclosure or default by the Receiving Party; or
ii. was or is lawfully obtained or available from a third party who was lawfully in possession of the same information and free to disclose it; or
iii. was already known to the Receiving Party, as evidenced by written record pre-dating such disclosure; or
iv. is required by any government or regulatory body to be disclosed by the Receiving Party.
10.2. In consideration of any of the Parties disclosing Confidential Information, the Receiving Party hereby undertakes, for the whole duration of this Agreement and for a period of time of twelve (12) months from the date of termination of contractual relationships:
i. to keep confidential all Confidential Information that it may acquire in any manner relating to the performance of this Agreement;
ii. to use such Confidential Information exclusively for the performance of this Agreement and not to use the Confidential Information for the Receiving Party's own purposes or benefit or for the benefit or purpose of any other unauthorized third party;
iii. not to disclose such Confidential Information to anybody, except to authorized employees of the Disclosing Party or business partners of the Disclosing Party, who need to have access to the Confidential Information for the purpose of carrying out their duties in connection with the performance of this Agreement;
iv. to inform everybody to whom it discloses Confidential Information that it is confidential and obtain their agreement to keep it confidential on the same terms as this Agreement;
v. to keep safe any access data, documents, samples or materials provided on loan by the Disclosing Party, not to reproduce, part with possession of, modify or otherwise interfere with such items, to return them immediately upon Disclosing Party's request and in any event spontaneously when no longer required for the purposes of this Agreement;
vi. to notify the Disclosing Party immediately upon becoming aware of any breach of confidence by anybody to whom the Receiving Party has disclosed the Information and give all necessary assistance in connection with any steps which the Disclosing Party may wish to take to prevent, stop or obtain compensation for such breach or threatened breach.
11. Intellectual Property
11.1. Nothing in this Agreement will be deemed to give to the Customer any right, license or other type of right to use any of the Intellectual Property owned and/or developed and/or licensed by Zariot and/or any Third Party Service Provider, with the exception of the rights Zariot grants to the Customer for the term of this Agreement solely in connection with providing the Services and to the extent that they are necessary in order for the Services to be used for the purpose they were supplied.
11.2. Where access to the Mobile Platform is granted as part of the Services, the license to use the Mobile Platform is granted only in connection with the provision of the Services and for the duration of this Agreement. Upon termination of this Agreement, the Customer loses any rights to use the Mobile Platform and access will be restricted from the termination date.
12. Force Majeure
12.1. Neither of the Parties shall be liable for non-performance or improper performance - total or partial - of any obligation imposed on it under this Agreement, if non-performance or improper performance of those obligations was due to Force Majeure, as defined by law.
12.2. The Party invoking Force Majeure shall notify the other Party, within three (3) days from the occurrence of such an event and take all possible measures in order to limit its consequences.
12.3. If within ten (10) business days from occurrence, the event continues, the Parties are entitled to notify the termination of this Agreement without any of them having the right to claim damages.
13.1. Any notice or communication given by Zariot to the Customer, in connection to this Agreement, shall be in writing and shall be sent by e-mail to the address indicated in the Order Form by the Customer.
13.2. Any notice or communication given by the Customer to Simfony, in connection to this Agreement, shall be in writing and shall be sent to the following e-mail address: email@example.com.
13.3. All notices and communication will be deemed delivered on the day they were sent, unless the e-mail is returned to sender as "undeliverable".
13.4. The Parties have the right to change their e-mail address by sending a written notice, prior at least five (5) business days from the moment the change becomes effective.
14.1. The Parties will make all reasonable efforts in order to settle any disputes arising from the conclusion, performance or termination of this Agreement in an amicable manner.
14.2. If the Parties do not reach an amicable settlement within thirty (30) days from the occurrence of any dispute over the provisions of this Agreement, the Parties will defer said dispute to the competent courts of law.
14.3. Separate from any means of settling disputes that arise from the conclusion, performance or termination of this Agreement, the Customer has the right to address the Romanian National Authority for Administrating and Regulation of Communications (ANCOM) with a written request regarding the resolution of any such dispute, should the dispute not be settled amicably within the timeframe set out in art. 14.2.. The request can be made following the procedure set out under this webpage: http://www.ancom.org.ro/_250.
14.4. The Parties hereby declare that they submit to the jurisdiction of the courts of law of Bucharest, Romania, and these will be the only competent bodies to settle any disputes between the Parties.
14.5. The Parties further agree that the applicable law of this Agreement will be Romanian substantive law.
15. Client services
15.1. The Customer can file any request/complaint/question regarding the provision of the Services to the following e-mail address: firstname.lastname@example.org or by calling the telephone number: 0040.314.361.999 (available Mon. – Fri. from 09:00-17:00 EEST). Any request can also be sent in written form at the following address: 99 Carol Davila str., 2nd Floor, 5th District, Bucharest, Romania.
15.2. Any answer given by Zariot will be in writing and sent within fourteen (14) days from receiving any enquiry from the Customer.
15.3. Any request regarding technical issues in what concerns the Services, will be answered within seventy-two (72) hours.
16. Final Provisions
16.1. Nothing in this Agreement will be deemed to create a partnership between Zariot and the Customer, or to enable any of the Parties to act as an agent for the other Party or in any way to act in the name or on behalf of the other Party.
16.2. Zariot is entitled to transfer, assign, or otherwise deal with any of the rights it has under this Agreement to a third party. The Customer can transfer its rights and obligations according to this Agreement only with the prior, written consent of Simfony.
16.3. Should any of the Parties violate their obligations, the failure of the Party who has suffered a prejudice to enforce its rights, to require the execution of the obligations or to require the money equivalent of those obligations, does not mean it renounced those rights.
16.4. Any contractual provision proved to be invalid, prohibited, unenforceable or void from a legal standpoint, to the extend this has been established by a court of law, will not affect the validity of the rest of the Agreement, which will continue to be in effect through the remaining valid provisions.
16.5. Any contractual provisions proved to be invalid, prohibited, unenforceable or void from a legal standpoint will be replaced in a way that they produce effects; this will be done in such a way as to affect as little as possible the other provisions.
16.6. Modification of this Agreement can only be done through a written addendum, signed by both contracting Parties, unless otherwise stated in this Agreement.