1. Legal framework
ONOFF TELECOM, a simplified joint-stock company, registered in the Commercial and Companies Register under number Paris B 799 270 160, the registered office of which is at 26 boulevard de Bonne Nouvelle, 75010 Paris, France, hereinafter “ONOFF TELECOM”, has developed an Application, defined in article 1.2, known as ONOFF TELECOM, offering secondary communication and contact management services.
“Underlying Subscription” designates the contract for the provision of primary mobile phone services and mobile broadband internet contracted by the User with a third party Provider before using the Services and from which credit (phone and data) is deducted when using the Application.
“Application” designates the software developed and operated by ONOFF TELECOM, downloadable from the application distribution platforms, which allows benefiting from the Services.
“User Account” designates the personal account created by the User to use the Application.
“User Content” designates all the User’s publications and content while using the Application, in particular when publishing messages or media or, more generally, when the Application’s functions allowing publication are used.
“Onoff Credit” designates the credit allowing the User, in some countries, to make telephone calls to landline and/or mobile phone numbers and/or to send SMS messages.
“Number(s)” designates the mobile telephone Number(s) allocated to the User by ONOFF TELECOM, allowing the User to be identified via the Application. The methods of allocation and use of the Number are described in detail in article 2.1.
“Website” designates the site accessible at the address www.onoffapp.com, operated by ONOFF TELECOM.
2. Use of the Application
When using the Application, the User must follow the rules specified in article 2.1. Prior to any such use, the User acknowledges and accepts that operation of the Application requires the purchase of an Underlying Subscription which includes the ability to send and receive phone calls and a mobile broadband internet access and is under their own responsibility in accordance with article 2.2.
To use the Application the User must, initially, create a User Account by following the instructions set out below in article 2.1.1. The password chosen by the User when creating their User Account allows them to connect securely to the Application in accordance with article 2.1.2. The User can subsequently obtain one or more Number(s) from ONOFF TELECOM following the steps set out in articles 2.1.3 and 2.1.4 and benefit from associated features. These different Number(s) may then be used for a given period subject to the rules regarding their availability and under the article 2.1.6.
2.1.1 Creating a User Account
The User must create a User Account in order to download and use the Application.
To create a User Account a subscription must have been taken out (for a period of time chosen by the User), the minimum term of which is one (1) month, renewable under the conditions set out in articles 2.1.6 and 6.2, the prices of which are available in the pricing appendix at the address given in article 1.2 and through the Application interface. This subscription enables the User to access the Services offered by ONOFF TELECOM and allocates them a Number, the use and availability of which are defined in article 2.1.6.
To subscribe to the Services offered by ONOFF TELECOM the User must have a means of payment which can be used on their terminal, e.g. mobile telephone, Smartphone, PDA, tablet or other device.
2.1.2 Secure connection to the Application and Services
Use of the Application requires the User to establish one or more passwords. The User agrees to create strong passwords and to protect the confidentiality of any passwords. Passwords must not be shared with any third party so as to prevent any unauthorized use of the Application, Services, and User Account. The User understands and accepts that they alone shall be liable for all activities undertaken with their User Account. It is also the User’s responsibility not to reply to unsolicited requests for information concerning, for example, their bank card or bank account details. If the password is lost, the User must send a request to reset the password.
2.1.3 Intentionally left blank
2.1.4. Subscription to Numbers and associated communication functionalities; limitations on special numbers and emergency numbers
After creating their User Account, the User may purchase one or more Number(s) using the Application interface. This/these Number(s) is/are provided for a fee and is/are divided into different categories, each having a separate price list, available in the pricing appendix at the address given in article 1.2. Subject to the conditions of availability set out in article 2.1.6, these Numbers are allocated to the User for the duration of the subscription selected by the User in the predetermined periods that are offered (e.g.: one month, three months, six months or one year). These Numbers give access to all of the Services. They are used to send and receive phone calls and SMS to and from anyone with a number of the national numbering plan of the Number chosen by the User, subject to the limitations set out in the following paragraph regarding calls to certain categories of numbers. These Numbers make it possible to send and receive instant messages only between Users of Services that own Number(s), to the exclusion of people without the Application.
The Services are in no way a substitute for primary mobile phone services provided by the operator with which the User has contracted their Underlying Subscription. The User acknowledges and accepts that the Numbers do not permit sending and receiving phone calls on all numbers, including calls to special numbers (e.g., toll-free numbers) and emergency numbers (e.g., 911). If the User contacts an emergency number, the recipient will not receive the User’s precise location. Users may not attempt to call special numbers or emergency numbers through the Application.
Calls that cannot be made from the Application (i.e. calls to special numbers and emergency numbers) must be made directly from the Users SIM provided by the network operator with whom the User has contracted their Underlying Subscription. ONOFF TELECOM reserves the right to allow Users to make calls to additional categories of numbers at a later date.
2.1.5. Additional functionalities associated with any Number
Features associated with the Numbers allow each Number to be activated or deactivated using the Application’s interface so as to allow the User to manage communications with other Users. In the same way, the User can activate and deactivate the functions of Numbers (calls, voice messaging, instant messaging and SMS) to prioritize or restrict certain methods of communication.
The “Stealth” function makes it possible to hide a number from the homepage of the Application on which the Number(s) to which the User has subscribed appear.
The “Stealth” function is available for each Number and can be turned on in the Number Settings. To turn on the “Stealth” Function attached to a Number, the User must first create a four (4) digit password. This password is unique for each Number.
If the User forgets the password, another one cannot be requested through the Application. To regain access to the relevant Number, an email will have to be sent to the following address: firstname.lastname@example.org
2.1.6. Availability and use of Numbers
ONOFF TELECOM allocates its Users one or more Number(s) according to the subscription purchased or the promotional offer they benefit from. These Numbers are subject to the rules applicable to numbering and to statutory practices.
Once the User is allocated a Number, they accept the following rules:
- The User has no right of ownership over the Number(s), and no right to keep or maintain the Number(s) indefinitely;
- The User must at all times follow the rules applicable to numbering, legal and statutory practices and regulations, and the specific requirements regarding the allocation of the Number(s), as well as all the instructions which ONOFF TELECOM may send them in relation to the Number(s);
- The User has a revocable and exclusively personal right of use of the Number, which in particular excludes its sale, sub-leasing or transfer, or more generally any its disposal or use as security.
2.1.7. Cancelling Number(s)
In order to cancel one or more Number(s), the User must manually click on the “Cancel” button on the Application’s interface.
Access to the relevant Number(s) ends as soon as the User clicks on the “Cancel” button, rather than at the end of the prepaid subscription period of the Number.
It is specified that the cancellation of a Number results in the loss of the cancelled Number(s) as well as the data related to the use of the Number (e.g. SMS, call logs, voicemails, etc.).
In case of cancellation of a Number, the User may re-subscribe to the said Number(s) within two (2) months of the cancellation in a simple way. Indeed, during this period, the Number cancelled remains in first position on the list of Numbers to which the User may subscribe. To re-subscribe to the Number cancelled, the User must click on the “Buy” button located at the right of the Number cancelled and purchase a subscription.
If the User does not re-subscribe to the Number cancelled before the expiry of this two (2) month period, the Number cancelled disappears from the list of the Numbers to which the User may subscribe and other Users may see the Number cancelled and use it.
2.1.8. Loss of Number in case of deactivation
The User acknowledges and agrees that the deactivation of Service results in the loss of the Number as well as the data related to the use of the Number (e.g. SMS, call logs, voicemails, etc.).
However, the User will still be able to subscribe to the said Number(s) within sixty (60) days of the deactivation. Indeed, during this period, the Number deactivated will remain in first position on the list of Numbers to which the User may subscribe. To subscribe to the Number deactivated, the User will have to click on the ‘Buy’ button located at the right of the Number deactivated and purchase a subscription. If the User does not subscribe before the expiry of this sixty (60) day period, the Number deactivated will be removed from the list of the Numbers to which the User may subscribe and will be made available to the other Users.
The User acknowledges and agrees that the loss of the Number triggers the loss of the data related to the use of the Number (e.g. SMS, call logs, voicemails, etc.).
2.2. Conditions of access to Services
Use of the Application provided by ONOFF TELECOM requires a prior purchase of an Underlying Subscription to a mobile telephone service covering making and receiving telephone calls, and a mobile Internet package. Contracting such an Underlying Subscription, which is essential to the use of the Application, is the sole responsibility of the User. In addition, the User must provide all the necessary equipment to the use of Services, notably a terminal. The Application is compatible with terminals using a recent version of an operating system.
ONOFF TELECOM is liable neither for the satisfactory operation of the User’s equipment, nor for that of the telephone network of the operator with which the User has contracted the Underlying Subscription.
Services are delivered through the network of the operator with which the User contracted the Underlying Subscription and ONOFF TELECOM partner’s network.
2.2.1 Pre-conditions to making and receiving phone calls
The User acknowledges and accepts that making and receiving phone calls requires the use of the SIM card and telephone credit provided by the operator with which the User contracted the Underlying Subscription.
Pursuant to the information given when downloading the Application and making or receiving the first phone call, the User acknowledges and accepts that calls made and received from the Application over the mobile network are discounted and/or charged by the operator with which the User contracted the Underlying Subscription, in accordance with the provisions of article 6.2.
Moreover, the User acknowledges and accepts that phone calls made and received through the Application are deducted from the Underlying Subscription or invoiced in addition where they are considered to be out of plan under the Underlying Subscription.
In the interest of clarity and transparency, ONOFF TELECOM explicitly indicates that incoming calls (received calls) from the Application are charged as outgoing calls (calls made by the User) by the operator to which the User has subscribed his Underlying Subscription at the rate determined by the said operator. It ensures the absolute confidentiality of calls made and received from the Application.
2.2.2 Pre-conditions to access all Services
The User acknowledges and accepts that made and received calls, SMS, instant messages and the general use of the Services require Wifi or mobile broadband internet access and the data credit provided by the operator with which the User contracted the Underlying Subscription.
Furthermore, when the User’s terminal is not connected to a Wifi network but to a mobile broadband internet access and data credit provided by the operator with which the User contracted the Underlying Subscription, the User acknowledges and accepts that the use of the Services is charged as credit data under the Underlying Subscription or invoiced in addition where they are considered to be out of plan under the Underlying Subscription.
2.3 Restrictions on use of the Application
The User must use the Application in accordance with the applicable law and is solely liable if the Application is used for fraudulent, abusive, or illegal purposes.
The User must under no circumstances:
- Impair (and must on the contrary prevent impairment of) the Application, and in particular:
- Use a process designed to deform, alter, modify, disassemble or delete the Application, its protocols and communications, such as, in particular, viruses, Trojans, worms, logic bombs, etc.;
- Alter or attempt to alter the Application, its functionality or its availability;
- Circumvent, deactivate or disrupt the functions relating to the Application’s security and integrity (or the integrity of any electronic equipment of any kind), or functions preventing or restricting use of the Software content;
- Use an automated system to access the Application;
- Download and/or share inappropriate content (illegal, offensive to human dignity, of a sexual, defamatory, injurious, racist character, or any other content which might engage the civil or criminal liability of the person or entity publishing it);
- Undertake activities prejudicing the private lives of other persons, notably by misappropriating the identity of another person;
- Modify, intercept or monitor any communication which is not directed at them;
- Transmit broadcasts or recorded material;
- Collect data from the Application allowing personal identification, including names of accounts;
- Use the Application to send, or to assist other persons to send, undesirable messages. The term “undesirable messages” is understood to mean all telemarketing, promotional materials, “junk mail,” unsolicited messages, and requests for contact (“SPAM”, “SPIT or SPam over Internet Telephony”, “undesirable mail”, or misleading or mendacious content), or similar messages sent in bulk, whether in the form of emails, calls, faxes, SMS messages, instant messages or by other means;
- Send or receive an excessive volume of emails, calls, faxes, SMS messages, instant messages or similar communications using the Application or Services;
- Use the Application for purposes of phishing, misappropriation of identity or pharming;
- Engage in “spoofing” as prohibited in the Truth in Caller ID Act of 2009, 47 U.S.C. § 227(e), and Federal Communications Commission rules;
- Use the Application to embarrass, threaten, hassle or intrude into the private life of a third party, or expose a third party to shocking, indecent or dangerous content;
- Prejudice the intellectual property rights of ONOFF TELECOM, of another User or of a third party, and in particular:
- Use in any manner whatsoever any content subject to ownership rights not belonging to the User, unless the latter holds a license or express permission from the owner of the rights;
- Resell or market the Application, which is intended for the User’s personal use.
ONOFF TELECOM reserves the right to suspend part or all of the Application Services if the User’s use of the Application is inconsistent with normal use. For example, using the Services for a marketing campaign for commercial purposes, spamming, operation of any automated services and reselling or attempts to resell the Services to third parties all constitute an abnormal use of the Services.
2.4 Updating and suspension of the Service
2.4.1 Updating of the Application
ONOFF TELECOM does not guarantee that the updated Application will always be compatible with older versions of the Application. Nor does ONOFF TELECOM guarantee to continue to provide maintenance for a version of an operating system or device for which the User has a license.
2.4.2 Suspension and maintenance of the Service
ONOFF TELECOM reserves the right to temporarily suspend or restrict use of all or part of the Application in order to undertake operations to maintain or upgrade the Application, or the underlying infrastructure allowing use of the Application, as required for continuity of the Services, or relating to technological developments.
Other than in an emergency, temporary interruptions shall as far as possible be notified on the Website before they occur.
ONOFF TELECOM shall under no circumstances be liable for damages caused to the User if use of the Application is suspended or restricted for maintenance operations.
In order to improve the Application, ONOFF TELECOM may modify it at any time. ONOFF TELECOM may also suspend use of the Application under certain circumstances including, as non-restrictive examples, an inability to provide the Service, problems of an external origin making establishment of the Services difficult or inadvisable, technological progress, the need to modify the Service, or any other reasons set out in article 8.2. In the event of modifications the User must consequently use an updated version of the Application.
The User also acknowledges that limits on use and geographical restrictions may vary. The User is therefore advised to visit the Website regularly to obtain more detailed information on restrictions of use and recent modifications made to the Application.
3. Hosting of communications content
3.1. Content of correspondence
This article concerns content sent via SMS, MMS, instant messaging or telephone calls.
ONOFF TELECOM undertakes to protect the security, confidentiality and integrity of SMS and instant messages, in accordance with the applicable legal and statutory obligations.
However, content which is stored, used, transmitted and received by the User by means of the Application is done so under their sole liability. It is the User’s responsibility to ensure that they do not breach the legal and statutory provisions in force, more specifically by breaching the intellectual property rights attached to certain content.
3.2. User Content
The User is solely liable for the use they make, or seek to make, of the functions of the Application and of the User Content. ONOFF TELECOM does not check or promote User Content. ONOFF TELECOM does not accept any liability as regards to this User Content, of whatsoever nature, including, without this being restrictive, media shared through use of the Application.
The User also acknowledges and accepts that ONOFF TELECOM does not undertake any prior check of the User Content, and that it is not bound by a general obligation to monitor this content. Similarly, ONOFF TELECOM undertakes no check of the external sites and sources to which hypertext links accessible via the Application are linked.
4. Intellectual property
The Application contains exclusive and confidential information protected by the laws and treaties on intellectual property throughout the world.
User hereby acknowledged and agrees that ONOFF TELECOM is the exclusive owner the Application, and the User undertakes not, directly or indirectly, or through a third party, to challenge, prejudice, imperil or limit, by any measure whatsoever, the intellectual property rights held by ONOFF TELECOM over the Application in any jurisdiction worldwide. Similarly, any reproduction, representation, adaptation, modification, translation, transformation, distribution, integration in other equipment, exploitation, whether commercial or not, and/or re-use, in any manner whatsoever, of all or part of the elements comprising the Application, is strictly prohibited.
User hereby acknowledges and agrees that ONOFF TELECOM, the commercial trademarks and the associated logos, are commercial trademarks owned by ONOFF TELECOM. User undertakes not to challenge, register or use ONOFF TELECOM’s trademarks or any other ONOFF TELECOM intellectual property in any jurisdiction worldwide or to create any consumer confusion between User and ONOFF TELECOM.
4.1. End user License Contract
4.1.1. License Contract
This right is granted to the User for the full term of this Contract and throughout all the territory in which the User is established.
The User may not, and agrees not to:
- Grant a license, sell, assign, export, import, distribute or transfer, or grant rights to a third party over the Application;
- In any manner whatsoever, modify, copy, decompile, undertake reverse engineering or disassemble all or part of the elements comprising the Application or, indeed, attempt to derive the source code, or create works derived from all or part of the Application or from its updates, except in cases where the applicable law provides otherwise;
- Allow or authorize modification, creation of derived works or improvements, translation, emulation, piracy, discovery or attempted discovery of the source code or of the protocols of the Applications or of any part or latter’s function (other than to the extent permitted by law);
- Delete, conceal or modify the legal mentions of the trademarks or other property mentions included in the Application.
Any action set out above shall be considered as a breach of ONOFF TELECOM’s rights. If the User contravenes these restrictions they may be subject to legal proceedings and damages.
These provisions within this document shall govern all updates provided by ONOFF TELECOM which replace and/or are added to the Application, unless this upgrade is accompanied by a separate license.
4.2 Protection of personal data
ONOFFTELECOM uses reasonable security measures that are designed to protect personal information from loss, misuse, and unauthorized access, disclosure, alteration, or destruction (a “Security Breach”). Please note, however, that no data security measures can be guaranteed to be completely effective. Consequently, we cannot ensure or warrant the security of any personal information or other information. Users transmit personal information to us at their own risk. In the event of a Security Breach, ONOFFTELECOM will respond consistent with applicable federal or state law.
5.1 General points
5.2 User Content
The User declares and guarantees that they:
- Have the consents, authorizations and licenses required to use and authorize ONOFF TELECOM to use all copyrights, patents, commercial secrets and other property or intellectual property rights and all User Content in accordance with these terms. The User is therefore not authorized to copy, reproduce, publish or use images, text, graphical representations, music or sounds obtained from another party without the rightful owner’s prior, express authorization;
- Have the authorization, consent or permission of persons identifiable in the User Content before any use, publication, inclusion of the name or of personal elements of the persons concerned within the User Content.
The User also guarantees to ONOFF TELECOM that it holds all the rights and authorizations required for publication or uploading of User Content by means of the Application.
The User holds ONOFF TELECOM harmless against any claim brought by third parties or other Users on the grounds that their User Content constitutes a breach of intellectual or industrial property rights claimed by third parties or other Users, and ONOFF TELECOM may not be sued or troubled on this subject.
6. Payment terms – repayment methods
6.1 Costs and prices
Subscription to each Number is subject to payment of a fee that varies depending on the duration of the subscription chosen by the User amongst the predetermined subscription periods available.
Depending on the country in which the User is established, outgoing telephone calls to landlines or mobile phones and the sending of SMS may also be subject to the purchase of Onoff Credits.
All prices applicable to the Services and in particular applicable to the Numbers and Onoff Credits may be consulted in the pricing appendix which is regularly updated and is accessible on the Website and through the Application’s interface
ONOFF TELECOM expressly reserves the right to modify its prices at any time, subject to applicable notice requirements. In this situation, the new price will be applied to any new subscription or to any renewal to an existing subscription. This modification will be published by ONOFF TELECOM on the Website in the pricing appendix, which will be updated regularly, as well as on the Application interface. The new prices shall be applicable from the first subscription or renewal of subscription made after publication of the new prices.
6.1.2 Some communications between Users of the Application free of charge
Telephone calls between Users of the Application and instant messages exchanged between Users of the Application are free regardless of the countries where the relevant Users are established.
6.1.3 Promotional offers
ONOFF TELECOM may sometimes propose promotional offers for certain Services. These Services can, exceptionally, be free of charge or with a promotional price over a determined trial period. These promotional offers are subject to specific conditions.
ONOFF TELECOM nevertheless reserves the right to invoice the User for certain Services in the event of abusive use of the terms of the offer, in particular, and not restrictively, if the User uses means preventing their locating by ONOFF TELECOM (proxy, anonymous IP address, etc.).
6.1.4 Third party costs
18.104.22.168. Third party costs relating to outgoing and incoming telephone calls.
In accordance with the information given when downloading the Application and making or receiving the first phone call, the User understands and accepts that calls made and received through the Application on the mobile network are invoiced pursuant to article 6.2. as part of the Underlying Subscription, by the provider with whom the Underlying Subscription was contracted.
Moreover, the User acknowledges and accepts that phone calls made and received through the Application are deducted from the Underlying Subscription or invoiced in addition where they are considered to be out of plan under the Underlying Subscription.
In the interest of clarity and transparency, ONOFF TELECOM explicitly indicates that incoming calls (received calls) from the Application are charged as outgoing calls (calls made by the User) by the operator to which the User has subscribed his Underlying Subscription at the rate determined by the said operator.
22.214.171.124. Third party costs of using all Services
When the User’s terminal is not connected to a Wifi network but to a mobile broadband internet access and data credit provided by the operator with which the User contracted the Underlying Subscription, the User acknowledges and accepts that the use of the Services is charged as credit data under the Underlying Subscription or invoiced in addition where they are considered to be out of plan under the Underlying Subscription.
126.96.36.199 Potential and/or additional third party costs
Payment of potential and/or additional third party costs, and in particular of roaming charges, in the event of use of the Services outside of the country where the User is established, invoiced by the network operator with which the User’s Underlying Subscription was contracted, are payable in full by the User.
The payment of third party costs is the sole responsibility of the User.
6.2.1 Payment Methods
A User may make payments for Services, Numbers, and Onoff Credits through a number of means, including but not limited to electronic debits or fund transfers, or as electronic drafts from your designated account (in the case of Automated Clearing House or similar payments), or as charges to your designated account (in the case of credit card or similar payments) (collectively, “Electronic Payments”).
6.2.2 Automatic Renewal and Recurring Payment Policy
Users have the option to establish automatic renewal and recurring payments for their subscription to Services. To establish auto-renewal and recurring payments, a User must affirmatively opt-in through their Application distribution platform (e.g., Google Play Store or Apple Store).
By opting in to auto-renewal and recurring payments, the User:
- understands and agrees that the User’s subscription will automatically and indefinitely renew at intervals equal to the preceding subscription period unless and until the auto-renewal options are cancelled using the process outlined below;
- authorizes ONOFF TELECOM to automatically charge the User for the Numbers, Services, or OnOff Credits to which the User has subscribed, in the amount set forth in the pricing appendix, through the User’s preferred method of Electronic Payments;
- understands that ONOFF TELECOM generally will charge recurring payments in advance of the new subscription term, but that it may take several days to process a charge;
- understands that ONOFF TELECOM will not send User a bill before the charges are made and that it is User’s responsibility to ensure sufficient funds are available in the account at the time of each scheduled payment;
- understands that if any payment is returned unpaid or if any credit card or similar transaction is rejected or denied, ONOFF TELECOM reserves the right to collect any applicable return item, rejection or insufficient funds fee and to process any such payment as an Electronic Payment;
- understands that to cancel auto-renewal and recurring payments, a User must log-in to the applicable distribution platform (e.g., Google Play or the Apple Store) and request to cancel. Following cancellation, Users must manually renew their subscription in the manner set forth above in article 2.1.6. Cancellation before the end of the applicable subscription term is subject to the Termination - Suspension clause in article 8 and the Refund Policy in article 6.2.3.
6.2.3 Refund Policy
6.2.4 Payment for Numbers
The User understands and accepts that subscription to each Number is invoiced on a prepaid basis. If the auto-renewal option is not in force, the User may renew a subscription manually by connecting to the Application before the current subscription period expires and electing to renew the subscription. Renewal of the subscription for the period selected by the User will be effective only after full payment of the subscription fee.
6.2.5 Payment for Onoff Credits
If the User is established in a country in which outgoing calls and SMS require Onoff Credits, the User can buy packages of Onoff Credits and pay for them through the User’s preferred payment method. The User understands and accepts that:
- Credits are charged in increments of one minute, and are rounded up to the next minute;
- If the credits are not used for a period of thirty (30) days starting from the purchase date, they will expire. It is specified that this period is interrupted by each new purchase of Onoff Credits. In case of interruption, a new 30-day period starts to run from the date on which the User bought new Onoff Credits and applies to all Onoff Credits subscribed to by the User;
The User may not transfer Onoff Credits to another User Account.
8. Termination - Suspension
8.1 Termination by the User
The User has the option of terminating the relationship with ONOFF TELECOM when they so desire, without further formality. To do so, the User shall merely request closure of their User Account or cancel their Number(s) directly in the Application and cancel all recurring payments. To cancel your auto-renewal option and recurring payments, you must contact the distribution platform (e.g., Google Play or the Apple Store) and request to cancel.
Confirmation of such termination shall be sent to the User in an email containing their Number and the effective termination date.
8.2 Termination by ONOFF TELECOM
ONOFF TELECOM may immediately terminate its relationship with the User, at any time, without recourse to legal action in the following cases:
- If the information given by the User in their User Account are not accurate or if the mobile number provided by the network operator with whom the User has contracted their Underlying Subscription is not valid anymore;
- ONOFF TELECOM suspects illegal or fraudulent use of the Application or use contrary to the rights of third parties;
- ONOFF TELECOM suspects that the User is attempting to derive undue advantage from the reimbursement policy or one of ONOFF TELECOM’s other policies, whatever they may be, or to use them ill-advisedly.
ONOFF TELECOM can terminate its contractual relationship with the User at any time subject to a notice period of one (1) month and without recourse to legal action.
If ONOFF TELECOM decides not to keep offering a specific Service, ONOFF TELECOM can terminate such Services subject to a notice period of one (1) month and without recourse to legal action.
Any termination by ONOFF TELECOM will be notified to the User by email.
8.3 Consequences of termination
On the date on which the termination of the Contract takes effect the following consequences shall apply:
- All licenses and rights to use the Application shall be terminated immediately;
- The User shall cease to use the Application
- The User must delete the Application from all hard disks, networks and storage media, and shall destroy all copies in their possession or under their control.
- ONOFF TELECOM may block the access to the User Account and / or the Application;
- ONOFF TELECOM may erase the data associated to the User Account.
Termination of a specific Service will have the same consequences as those mentioned above, which will be limited to this Service only.
Without prejudice to the right to terminate this Contract, ONOFF TELECOM may suspend the Services or the access to the Application by simple written notice to the user in the following cases:
- If the information given by the User in their User Account are not accurate or if the mobile number provided by the network operator with whom the User has contracted their Underlying Subscription is not valid anymore;
- ONOFF TELECOM suspects illegal, fraudulent, or abnormal use of the Application or use contrary to the rights of third parties;
- ONOFF TELECOM suspects that the User is attempting to derive undue advantage from the reimbursement policy or one of ONOFF TELECOM’s other policies, whatever they may be, or to use them ill-advisedly;
- If ONOFF TELECOM suspects that the User Account is being fraudulently used by a third party.
9. Indemnity, Disclaimers and Limits on Liability
9.2. ONOFF TELECOM PROVIDES THIS WEBSITE, APPLICATION, SERVICES AND ANY SOFTWARE DOWNLOADED FROM THE WEBSITE, APPLICATION, OR SERVICES “AS IS” AND WITHOUT ANY WARRANTY OR CONDITION, EXPRESS, IMPLIED, OR STATUTORY. THIS MEANS, AMONG OTHER THINGS, THAT THE USER IS SOLELY LIABLE FOR THE PROTECTION, SECURITY, AND INTEGRITY OF DATA, HARDWARE AND SOFTWARE, AND FOR THE CONFIDENTIALITY OF USER ACCOUNT PASSWORDS AND IDENTIFIERS IN CONNECTION WITH USE OF THE SERVICES. ONOFF TELECOM SPECIFICALLY DISCLAIMS ANY IMPLIED WARRANTIES OF TITLE, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, ACCURACY OF INFORMATIONAL CONTENT, AND NON-INFRINGEMENT. THE USER ASSUMES TOTAL RESPONSIBILITY AND RISK FOR THE USER’S USE OF THIS WEBSITE, APPLICATION, AND THE SERVICES AND FOR ANY DOWNLOADS MADE FROM THE WEBSITE, APPLICATION, OR SERVICES. ONOFF TELECOM MAKES NO WARRANTY THAT THE WEBSITE, APPLICATION ANY SOFTWARE DOWNLOADED FROM THE WEBSITE, APPLICATION, OR THE SERVICES WILL MEET THE USER’S REQUIREMENTS OR WILL BE UNINTERRUPTED, TIMELY, SECURE, RELIABLE OR ERROR FREE, NOR DOES ONOFF TELECOM MAKE ANY WARRANTY AS TO THE ACCURACY OR RELIABILITY OF ANY INFORMATION OBTAINED THROUGH THE WEBSITE, APPLICATION, OR THE SERVICES OR THAT ANY DEFECTS WILL BE CORRECTED. ONOFF TELECOM DOES NOT WARRANT THAT SOFTWARE OPERATES ON THE TYPE OF DEVICE OWNED BY THE USER AND THE USER SHALL BE SOLELY RESPONSIBLE FOR OBTAINING A DEVICE COMPATIBLE WITH SOFTWARE. ONOFF TELECOM IS NOT RESPONSIBLE FOR ANY CONTENT ACCESSED THROUGH THE WEBSITE, APPLICATION, OR SERVICES. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY THE USER FROM ONOFF TELECOM SHALL CREATE ANY WARRANTY NOT EXPRESSLY MADE HEREIN. THIS DISCLAIMER IS MADE TO THE FULLEST EXTENT PERMITTED BY LAW. SOME STATES AND COUNTRIES DO NOT ALLOW THE DISCLAIMER OF IMPLIED WARRANTIES, SO THE FOREGOING DISCLAIMER MAY NOT APPLY TO USERS IN THOSE JURISDICTIONS.
9.3. TO THE MAXIMUM EXTENT PERMITTED BY LAW, IN NO EVENT WHATSOEVER SHALL ONOFF TELECOM, ITS PARENT COMPANIES, AFFILIATES, OR SUPPLIERS OR THEIR RESPECTIVE EMPLOYEES, OFFICERS, SHAREHOLDERS, AGENTS, LICENSORS OR REPRESENTATIVES BE LIABLE FOR ANY INDIRECT, CONSEQUENTIAL, INCIDENTAL, SPECIAL, PUNITIVE OR EXEMPLARY DAMAGES, OR FOR ANY LOSS OF PROFITS OR REVENUE, INCLUDING BUT NOT LIMITED TO LOSS OF SALES, PROFIT, REVENUE, GOODWILL, POSSIBILITIES, BRAND OR REPUTATION-RELATED IMAGE, CLIENTELE, TURNOVER OR DOWNTIME, OR DAMAGES FOR CONTENT, OR RELATING TO DOWNLOADING SOFTWARE, APPLICATION OR POSTING CONTENT, THE INABILITY TO USE THE SOFTWARE OR THE APPLICATION OR SERVICES (INCLUDING TO CONTACT OR PROVIDE DETAILED LOCATION INFORMATION TO EMERGENCY SERVICES SUCH AS 911, AND ANY ACTIONS OF EMERGENCY SERVICES), ANY CONDUCT BY A THIRD-PARTY ON, OR THIRD-PARTY CONTENT ACCESSED THROUGH, THE WEBSITE, APPLICATION, OR SERVICES, OR ANY UNAUTHORIZED ACCESS, USE OR ALTERATION OF THE USER’S TRANSMISSIONS OR CONTENT (ARISING UNDER TORT, CONTRACT, OR OTHER LAW) REGARDLESS OF SUCH PARTY’S NEGLIGENCE OR WHETHER SUCH PARTY KNEW OR SHOULD HAVE KNOWN OF THE POSSIBILITY OF SUCH DAMAGES. THE USER UNDERSTANDS AND AGREES THAT THE DOWNLOAD AND UPLOAD OF ANY MATERIAL THROUGH THIS WEBSITE, APPLICATION, OR SERVICES IS DONE AT THE USER’S DISCRETION AND RISK AND THAT THE USER WILL BE SOLELY RESPONSIBLE FOR ANY LOSS OR DAMAGE TO THE USER’S COMPUTER SYSTEM OR LOSS OF DATA THAT MAY RESULT FROM THE DOWNLOAD OR UPLOAD OF ANY MATERIAL. ONOFF TELECOM NEITHER ASSUMES, NOR DOES IT AUTHORIZE ANY OTHER PERSON TO ASSUME ON ITS BEHALF, ANY OTHER LIABILITY IN CONNECTION WITH THE PROVISION OF THE WEBSITE OR THE APPLICATION. ONOFF TELECOM’S LIABILITY HEREUNDER IS LIMITED TO THE FULLEST EXTENT PERMITTED BY LAW. SOME STATES OR OTHER JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATIONS AND EXCLUSIONS MAY NOT APPLY TO USERS IN THOSE JURISDICTIONS.
9.4 The Services offered by ONOFF TELECOM under no circumstances may replace the primary mobile telephone service provided by the operator with which the User contracted the Underlying Subscription. The User therefore understands and accepts that the Numbers do not make it possible to make a call to all categories of numbers. Therefore, calls which cannot be issued from the Application (calls to special numbers, international numbers and emergency numbers) must be routed directly from the User’s telephone using the primary mobile telephone service provided by the operator with which the User contracted the Underlying Subscription. ONOFF TELECOM reserves the right to allow users to make calls to additional classes of numbers after the launch of the Services.
9.5 ONOFF TELECOM’s total liability towards a professional User (pursuant to the Contract) shall not be greater, all categories of prejudice combined, than the total sum paid by the User for products within the twelve-month (12-month) period immediately preceding the date of the causal event having led to the action in question.
10. Force majeure
Neither party shall be liable for any default or delay in the performance of its obligations hereunder (except for failure to pay amounts due) if and to the extent that such default or delay arises out of causes beyond its reasonable control, including without limitation acts of God, acts of war, acts of terrorism, earthquakes, fires, cable cuts, power outage, catastrophic network element failures, floods, riots, civil disorders, rebellions, strikes, lockouts and labor disputes (individually, each such event is a “Force Majeure Event”).
11. Resolution of disputes – Applicable law
11.1. Mandatory, Bilateral, and Binding Arbitration
Please read this carefully. It affects User rights. User and ONOFF TELECOM agree that any dispute, controversy, or claim arising out of or relating in any way to the User’s use of ONOFF TELECOM service, or to any products or services sold or distributed by ONOFF TELECOM or through ONOFF TELECOM websites or mobile applications, including any dispute or claim as to the scope or applicability of this agreement to arbitrate, shall be resolved only by final and binding, bilateral arbitration, except that (1) User may assert claims in small claims court if User's claims qualify; and (2) this agreement to arbitrate does not include User’s or ONOFF TELECOM’s right to seek injunctive or other equitable relief in a court of competent jurisdiction pursuant to the Choice of Law & Jurisdiction provision above, to prevent the actual or threatened infringement, misappropriation, or violation of a party’s copyrights, trademarks, trade secrets, patents, or other intellectual property rights. The Federal Arbitration Act, 9 U.S.C. § 1, et seq., and federal arbitration law apply to this agreement and govern all questions as to whether a dispute is subject to arbitration.
11.2. Dispute Notice
Before initiating an arbitration, the User and ONOFF TELECOM each agree to first provide the other a written notice (“Notice of Dispute”), which shall contain: (a) a written description of the problem and relevant documents and supporting information; and (b) a statement of the specific relief sought. A Notice of Dispute can be (1) mailed to [INSERT MAILING ADDRESS] (the “Notice Address”), (2) emailed at email@example.com, (3) submitted by visiting [LINK) ONOFF TELECOM will provide a Notice of Dispute to the User via mailing address or email address associated with the User’s ONOFF TELECOM account.
The User and ONOFF TELECOM agree to make attempts to resolve the Dispute prior to commencing an arbitration and not to commence and arbitration proceeding until a 45-day post-notice resolution period expires. If an agreement cannot be reached within forty-five (45) days of receipt of the Notice of Dispute, the User or ONOFF TELECOM may commence an arbitration proceeding.
11.2. Arbitration Process and Procedure
All Disputes shall be determined by binding arbitration (1) administered by the Judicial Arbitration and Mediation Services, Inc. (“JAMS”), pursuant to the JAMS Streamlined Arbitration Rules & Procedures effective July 1, 2014 (the “JAMS Rules”), and as modified by this agreement to arbitrate, including the rules regarding filing, administration, discovery, and arbitrator fees; (2) conducted by a single, neutral arbitrator; and (3) take place telephonically, unless an in-person hearing is specifically requested by either party, in such case in-person hearings shall take place in the county where the User resides. To the extent that this agreement to arbitrate conflicts with the JAMS Policy on Consumer Arbitrations Pursuant to Pre-Dispute Clauses Minimum Standards of Procedural Fairness (the “Minimum Standards”), the Minimum Standards in that regard will apply.
Disputes may also be referred to another arbitration organization if the User and ONOFF TELECOM agree in writing, or to an arbitrator appointed pursuant to Section 5 of the Federal Arbitration Act. 9 U.S.C. §1-16.
We each agree that any dispute resolution proceedings will be conducted only on an individual basis and not in a class, collective, or representative action.
The JAMS Rules are available on its website at http://www.jamsadr.com/rules-streamlined-arbitration/. Notwithstanding any JAMS Rules to the contrary or any other provision in the arbitration rules chosen, by agreement, to govern, the User and ONOFF TELECOM each agree that all issues regarding the Dispute are delegated to the arbitrator to decide, except that a court (and not the arbitrator) shall decide any disagreements regarding the scope and enforceability of this agreement to arbitrate.
To commence an arbitration, a Demand for Arbitration is required to be executed and served on ONOFF TELECOM. Service of the Demand for Arbitration on ONOFF TELECOM can be mailed to [INSERT ADDRESS] pursuant to the instructions provided by JAMS to submit a Dispute for arbitration. Service of the Demand for Arbitration on the User will be sent to the Notice Address. Further instructions on submitting a Demand for Arbitration can be found at www.jamsadr.com/files/Uploads/Documents/JAMS_Arbitration_Demand.pdf. ONOFF TELECOM will bear the cost of the User’s initial filing fee.
11.3 Class Action Waiver
NEITHER THE USER NOR ONOFF TELECOM SHALL BE ENTITLED TO JOIN OR CONSOLIDATE DISPUTES BY OR AGAINST OTHER INDIVIDUALS OR ENTITIES, OR ARBITRATE ANY DISPUTE IN A REPRESENTATIVE CAPACITY, INCLUDING, WITHOUT LIMITATION, AS A REPRESENTATIVE MEMBER OF CLASS OR IN A PRIVATE ATTORNEY GENERAL CAPACITY, IN CONNECTION WITH ANY DISPUTE. Further, unless both the User and ONOFF TELECOM expressly agree otherwise, the arbitrator may not consolidate more than one person’s claim. If this prohibition of class, representative, or consolidated arbitration is found to be unenforceable, then the entirety of this arbitration provision shall be null and void. If, for any reason, a claim proceeds in court rather than in arbitration, we each waive our right to a jury trial.
11.4 Arbitrator Selection
Arbitration will be conducted by one neutral arbitrator selected with the participation and involvement of both ONOFF TELECOM and the User pursuant to JAMS Rule 12.
11.5 Arbitrator Award
An arbitrator’s award will consist of a written statement of the disposition of each Dispute and a concise written statement of the essential findings and conclusion on which the award is based. The arbitrator’s decision and award are final and binding, subject only to the limited court review permitted under the FAA, and judgment on the award may be entered in any court of competent jurisdiction.
In the event the User commences arbitration, after ONOFF TELECOM receives notice that the User has initiated arbitration, ONOFF TELECOM will promptly reimburse the User for the User’s payment of the filing fee and ONOFF TELECOM will pay the JAMS any case management fees associated with the arbitration and the professional fees for the arbitrator’s services.
12. Choice of Law and Jurisdiction