GENERAL TERMS AND CONDITIONS
This Agreement (as defined below) is made between (1) China Telecom Global Limited, a company incorporated under the laws of Hong Kong with its registered address at 38th Floor, Everbright Centre, 108 Gloucester Road, Wanchai, Hong Kong or such other company named in the Order Form (Company) and (2) the customer named in the Order Form (Customer).
It is agreed as follows:
1 Structure of the agreement
1.1 This Agreement comprises:
1.1.1 these General Terms and Conditions;
1.1.2 the Service Terms;
1.1.3 Service Level Agreement (if applicable); and
1.1.4 the Order Form.
1.2 If any of the documents referred to in clause 1.1 is inconsistent with the others, then the documents will prevail in the descending order set out in clause 1.1 to the extent of the inconsistency.
1.3 For the avoidance of doubt, subject to Applicable Laws and except stated expressly otherwise in this Agreement, the terms and conditions of this Agreement prevail over any inconsistent terms or conditions contained in, or referred to in, the Customer's purchase order, confirmation of order or specification, or implied by law, trade custom, practice or course of dealing.
2 Term of this Agreement
2.1 This Agreement begins on the Commencement Date and continues during the Service Initial Term, Service Renewal Term and Service Extension Term (if any) unless terminated earlier in accordance with this Agreement.
3 Supply of services
3.1 The Company agrees to supply the Service to the Customer, and the Customer agrees to acquire the Service from the Company, for the duration, at the Charges and on the terms set out or referred to in this Agreement (including the Order Form, the Services Terms and (if applicable) the Service Level Agreement). Notwithstanding the generality of the foregoing, the Company will provide the Service to the Customer in accordance with the relevant Service Levels. the Company does not guarantee the provision of continuous or fault free Services.
3.2 The Company may sub-contract the provision of all or part of the Service to any Affiliate of the Company or to a Third Party Provider, but the Company will remain primarily liable for the performance of its obligations under this Agreement.3.3 The Customer acknowledges that the Company is currently, or may be in the future, prohibited by Applicable Laws in certain jurisdictions from providing some or all Services within such jurisdictions (each, a "Local Jurisdiction"). In order to ensure that the Services are available to the Customer in Local Jurisdictions, the Company has entered into contractual arrangements (each, a "Third Party Provider Contract") with its Affiliates or other Third Party Providers to provide such Services within the Local Jurisdictions to the Customer, as necessary, pursuant to this Agreement. Each Third Party Provider Contract shall comply with the Applicable Laws of the Local Jurisdiction and shall conform, in all material respects, with the terms and conditions set forth herein.
3.4 The Company shall cause each Affiliate or Third Party Provider (as the case may be) to (a) execute such other instruments as may be necessary to effect the Third Party Provider Contracts, and (b) make such filings and take such other actions that may be required by the Applicable Laws of the Local Jurisdiction to effect the Third Party Provider Contracts.
3.5 If Service is to be delivered in a Local Jurisdiction, the Customer shall comply with all requirements of such Local Jurisdiction and the relevant Third Party Provider Contract, as communicated to the Customer by the Company. To that end, prior to the delivery of any Service in a Local Jurisdiction, upon request of the Company, the Customer shall (a) execute any required Third Party Provider Contracts directly with the Company’s Affiliate or Third Party Providers (as the case may be), and/or (b) execute an Order Form containing additional required terms, preserving, to the fullest extent possible, the terms of this Agreement.
3.6 The Customer acknowledges and agrees that, to the extent that the Company is prohibited from rendering Services in a Local Jurisdiction and the Customer either enters into such Third Party Provider Contracts or a modified Order Form or both, as required by the Company, (a) all references herein or in any Order Form to "the Company" shall be deemed to refer to the Company’s Affiliate or Third Party Provider (as the case may be) to the extent that such Company’s Affiliate or Third Party Provider (as the case may be) renders to the Customer Services in a Local Jurisdiction and (b) such Company’s Affiliate or Third Party Provider (as the case may be) may directly invoice the Customer for such Services in accordance with this Agreement.
4 Use of services
4.1 The Customer:
4.1.1 must comply with all Applicable Laws in relation to the use of the Service;
4.1.2 must ensure that it has all necessary licences and authorisations to use or resupply (as the case may be) each Service;
4.1.3 may only resell the Service to any End User to the extent permitted by Applicable Laws and, if it so resells the Service, is solely responsible for dealing with End Users concerning billing, fault reports and other complaints or enquiries about a Service and no resale shall relieve the Customer of its obligations under this Agreement;
4.1.4 is solely responsible for the content and security of any data or information which the Customer or any End User sends or receives using the Service;
4.1.5 is solely responsible for any use of the Services or any equipment connected to the Services;
4.1.6 must ensure that each End User complies with the obligations under this clause 4.1; and
4.1.7 will not, and will ensure that each End User does not, use or attempt to use a Service:
(A) to breach any Applicable Laws;
(B) to infringe any other person’s rights, including any Intellectual Property Rights;
(C) to expose the Company to any liability;
(D) to transmit, publish or communicate material which is illegal, defamatory, offensive, abusive, indecent or menacing;
(E) in any way which damages, interferes with or interrupts the Service, the Network or any third party’s network; or
(F) with an intent to avoid incurring charges.
4.2 The Customer agrees to act in a timely manner and to provide properly competent and qualified Personnel with respect to its obligations under this Agreement and to any tasks to be undertaken by it, whether expressly set out in this Agreement or otherwise reasonably requested of it by the Company. Performance of the Service is provided on the assumption that the Customer and its Personnel will fulfil their obligations and tasks on time and as stated.
4.3 If, as a result of any act or omission by the Customer, its End Users or its Personnel (howsoever caused) which is not directly and wholly caused by the Company (including the provision of any incorrect or inadequate information or data by the Customer), the Company is prevented or delayed from performing the Service or the cost of such performance increases, then:
(A) the time for performance of the Company’s obligations will be extended for a reasonable period; and
(B) the Customer shall pay the Company on demand:
(1) at the Company’s standard time and materials rates for any additional time spent and materials used by it with respect to any delays or extra work caused by such act or omission; and
(2) all other reasonable costs, loss or damage which it sustains as a direct result of such act or omission, subject to the Company confirming such costs, charges and losses to the Customer in writing.
5 Invoices and payment
5.1 The Customer must pay the Company the following charges for the Service:
5.1.1 a one-off non-recurring charge as set out in the Order Form, including the installation fee (Non-Recurring Charge);
5.1.2 Recurring Charges; and
5.1.3 Additional Charges,
as such charges may be revised in accordance with the Service Terms.
5.2 The Company will issue an invoice:
5.2.1 for the Non-Recurring Charge in advance upon the Commencement Date;
5.2.2 for the Recurring Charges on a monthly basis and in advance with the initial invoice issuable upon the Start Billing Date, provided that:
(A) if the Start Billing Date occurs on a date other than the first day of a calendar month the initial Recurring Charge shall be reduced to an amount equal to the remaining days of said calendar month following the Start Billing Date (including the Start Billing Date) multiplied by a rate equal to one-thirtieth (1/30th) of the Recurring Charge; and
(B) if the final month does not expire on the last day of a calendar month the final Recurring Charge shall be reduced to an amount equal to the number of days of said calendar month between the first day of the said calendar month and the actual expiry date of the final month (including the first day of the said calendar month and the expiry date) multiplied by a rate equal to one-thirtieth (1/30th) of the Recurring Charge; and
5.2.3 for the Additional Charges in arrears at the start of the month following the month in which the charge is incurred.
5.3 Subject to clause 7, the Customer must pay all invoices in full:
(A) within thirty (30) days of the date of the invoice;
(B) in the currency specified in the Order Form; and
(C) without any withholding, deduction, set off or counterclaim.
5.4 The Company reserves the right at its sole discretion to appoint from time to time an Affiliate and/or a third party as its agent:
5.4.1 to issue invoices to the Customer on behalf of the Company; and/or
5.4.2 to collect and receive payments due under this Agreement from the Customer on behalf of the Company,
and the Customer acknowledges and agrees to such arrangements.
5.5 In addition and without prejudice to any other remedies the Company may have, if the Customer fails to pay any amount when due the Company may without notice to the Customer:
5.5.1 charge interest on the overdue amount from the date due until the date paid at the rate of 1.5% per month. Such interest shall accrue on a daily basis from the due date until actual payment of the overdue amount, whether before or after judgment. The Customer shall pay the interest immediately on demand by the Company; and/or
5.5.2 net or set off amounts payable by the Company to the Customer under this Agreement.
5.6 For the avoidance of doubt and unless expressly specified in this Agreement, the obligation of payment of invoiced Charges is absolute, any reason attributable to the Customer (such as change of billing party of the Customer or internal restructuring of the Customer) shall not be cause for delay of payment or ground for the Customer to withhold payment of the invoiced Charges.
6.1 The Charges are exclusive of all applicable Taxes imposed by taxing authority in relation to the amount payable under this Agreement (save and except income tax attributable to the Company), whether existing on the date of this Agreement, or coming into effect on a later date.
6.2 Each party agrees to pay all Taxes imposed on such party by the taxing authority in its jurisdiction. Unless the Order Form provides otherwise, the Customer shall bear all applicable Taxes imposed by the taxing authorities in the relevant jurisdictions other than the jurisdictions of the parties.
6.3 If the Customer is required by all Applicable Laws relating to the Service to deduct any Taxes or make withholding from any amount payable under this Agreement then, notwithstanding anything to the contrary contained in this Agreement, the gross amount payable by the Customer to the Company shall be increased so that, after any such deduction or withholding for Taxes, the Company receives an amount equal to the sum it would have received had no
6.4 The Customer shall make timely payment of the amount withheld (before penalties attach thereto or interest accrues thereon) to the relevant taxing authority and promptly provide to the Company sufficient evidence of such payments. The evidence includes but not limit to official tax receipts issued by the local authority evidencing payment of taxes
6.5 Each party undertakes to the other to supply promptly to the other on request of such other from time to time information and assistance which the other may reasonably require to enable it to perform its obligations under this Agreement or to verify any Charges levied hereunder.
6.6 Provided always that if any of the Company’s Affiliate or Third Party Provider is in a position to issue invoice for an Order Form directly to the Customer pursuant to clause 5.6, the tax implications of such Order Form have to be negotiated and agreed upon by the Parties on case by case basis and this clause 8 shall not automatically apply to such Order Form.
7 Billing disputes
7.1 If the Customer reasonably disputes any matter contained in any invoice, the Customer shall:
7.1.1 pay the undisputed portion of the invoiced charges by the due date for the relevant invoice; and
7.1.2 notify the Company in writing of the disputed amount providing the invoice number and reasonable details as to why the amount is disputed within twenty (20) Business Days of the date of the relevant invoice.
7.2 A dispute shall not be cause for delay of payment of the balance due, nor may it be grounds for the Customer to withhold payment of any undisputed amount.
7.3 In the event of a dispute, the parties will investigate the matter and use reasonable endeavours to resolve the disputed charges within twenty (20) Business Days of the notice of the dispute. If the parties are unable to resolve the dispute informally in good faith within those twenty (20) Business Days, without prejudice to its other rights and remedies the Company reserves the right to suspend or terminate the Service.
7.4 Following resolution of the dispute, the adjustment (if any) will be applied to the payment of the Customer’s next Recurring Charge. If it is ultimately determined that the adjustment amount is payable by the Customer, the Company may charge interest on the adjustment amount from the original due date for payment of the disputed amount at the rate of 1.5% per month. Such interest shall accrue on a daily basis for each day thereafter until actual payment is made, whether before or after judgment. The Customer shall pay the interest immediately on demand by the Company.
8 Suspension of services
8.1 Subject to clause 8.2, the Company may suspend the provision of any or all Services to the Customer at any time:
8.1.1 in an emergency or to comply with Applicable Laws or an order, instruction or request of a Regulator;
8.1.2 if in the Company’s reasonable opinion the provision of a Service is liable to cause death or personal injury or damage to property;
8.1.3 if any restrictions of the Regulator apply to the supply or the use of a Service;
8.1.4 if a Third Party Provider ceases, or intends to cease, to supply to the Company services that form part of the Services;
8.1.5 if the Customer fails to pay any amount under this Agreement by its due date and that outstanding amount is not paid within five (5) Business Days of the Customer receiving notice requiring that outstanding amount to be paid;
8.1.6 if the Customer is in breach of clause 4.1; or
8.1.7 where the Company has a right to terminate this Agreement.
8.2 Unless otherwise specified, where possible the Company will provide the Customer with advance notice of its intention to suspend a Service. Where advance notice is not possible, the Company will notify the Customer of the suspension as soon as reasonably possible.
8.3 Where a Service has been suspended in accordance with:
8.3.1 clause 8.1.1, 8.1.2, 8.1.3 or 8.1.4, the Customer will not be liable to pay the Recurring Charges for the Service during the suspension period; or
8.3.2 clause 8.1.5, 8.1.6 or 8.1.7, during the suspension period:
(A) the Customer must continue to pay the Recurring Charges for the Service; and
(B) the Customer may be required to pay the Company a reconnection charge when the Service is reconnected.
9.1 Either party may terminate this Agreement:
9.1.1 where the other party is in material breach of any of its warranties, obligations or undertakings under this Agreement and that breach is not remedied twenty (20) Business Days after the breaching party has received notice to do so;
9.1.2 on notice to the other party where the other party suffers an Insolvency Event;
9.1.3 where a Force Majeure Event continues for more than twenty (20) Business Days; or
9.1.4 for convenience pursuant to the Service Terms,
provided always that if the Service is provided by the Company’s Affiliate or Third Party Provider, the notice required for termination of this Agreement shall, in order to comply with Applicable Laws in the relevant Local Jurisdiction and the terms and conditions of the relevant Third Party Provider Contract, be otherwise agreed by the parties in the Order Form.
9.2 The Company may terminate this Agreement immediately without further liability by notifying the Customer, except in respect of any rights and liabilities which have accrued before termination:
9.2.1 If any breach by the Customer of any Applicable Laws would restrain or prohibit or declare illegal in connection with the Company’s ability to perform this Agreement; or
9.2.2 If any person agrees to acquire or acquires Control of the Customer. For the avoidance of doubt, a change of Control event includes the following events:
(A) where a change of Control occurs via a single transaction or series of related transactions;
(B) where all or substantially all of the assets of the Customer are acquired by any Third Party;
(C) where the Customer is merged with or into another entity to form a new entity; or
(D) the Customer disposes of its division responsible for providing the Service by spin-off, public offering or sale to a Third Party.
The Customer shall give the Company notice in writing of any breach, matter, event, condition, circumstance, fact or omission or of any acquisition or agreement to acquire giving rise to any right for the Company to terminate pursuant to clause 9.3 as soon as practicable and in any event (subject to Applicable Laws) within ten (10) Business Days of the agreement giving rise to such right.
9.3 On termination of this Agreement:
9.3.1 by the Company in accordance with clause 9.1.1, 9.1.2 or 9.3, or
9.3.2 by the Customer in accordance with clause 9.1.4,
the Customer must pay the Company:
(A) the Termination Fee in addition to any outstanding charges payable pursuant to clause 9.4.2; and
(B) the aggregate charges, payable to any Affiliates or Third Party Providers, if any, for which the Company is or becomes contractually liable under the relevant Third Party Provider Contract in connection with any such termination.
9.4 On termination of this Agreement by either party for any reason:
9.4.1 all Confidential Information of a party must on the request of that party be destroyed or returned to that party by the other party;
9.4.2 all outstanding charges and invoices which have yet to be paid must be paid by the Customer;
9.4.3 the Customer will promptly surrender to the Company any equipment and other property owned by the Company, its Affiliates or Third Party Providers that has been supplied to the Customer;
9.4.4 accrued rights and obligations of a party are not affected; and
9.4.5 clauses 4, 9.3, 9.4, 10, 11, 12, 13, 14, 15, 17.3 and 17.14 will survive termination.
10.1 Each party accepts liability to the other party in connection with the Services and this Agreement as set out in this clause 10.
10.2 Subject to clauses 10.3, 10.6, 10.7, 10.8 and 10.9, a party’s maximum liability to the other party for Loss suffered or incurred in connection with this Agreement is limited in aggregate to 100% of the total payments by the Customer under this Agreement during the Service Initial Term except that if a Service Extension Term or Service Renewal Term has been agreed in accordance with the Service Terms then a party’s maximum liability to the other party for Loss suffered or incurred in connection with this Agreement is limited in aggregate to 100% of the total payments by the Customer under this Agreement during the Service Initial Term and the Service Extension Term and/or Service Renewal Term of this Agreement.
10.3 A party's liability to the other party for Losses under clauses 10.4 and 10.5 is not limited by clause 10.2.
10.4 Each party indemnifies the other party (Indemnified Party) for all Loss suffered or incurred by the Indemnified Party:
10.4.1 arising from personal injury or death to the Indemnified Party’s Personnel; and/or
10.4.2 arising from damage to the Indemnified Party’s physical property,
to the extent it is caused directly by the negligence of the indemnifying party in connection with this Agreement.
10.5 The Customer indemnifies the Company for all Loss suffered or incurred by the Company arising from:
10.5.1 any claim from its Personnel;
10.5.2 any claim from any End User or the Customer’s Personnel; and
10.5.3 any breach of any Applicable Laws by the Customer, any End User or its Personnel.
10.6 To the extent possible, the Company excludes any and all liability to End Users except to the extent that the Customer is the End User.
10.7 Other than for liability under clauses 10.4 and 10.5 or for any liability which may not be limited by applicable law, each party excludes any liability for any Consequential Loss suffered or incurred in connection with the Service and/or this Agreement.
10.8 To the extent possible, the Company excludes all conditions and warranties implied into this Agreement and limits its liability for any non-excludable conditions and warranties, where permitted by Applicable Law to do so, to (at the Company’s option) repairing or replacing the relevant goods, or resupplying the relevant or equivalent Service.
10.9 Other than as set out in the Service Levels, the Company excludes all liability to the Customer for interruptions to the Service. The Customer’s sole remedy for any failure of the Service to meet the Service Levels (if applicable) is the provision of the Service Credits.
11.1 Each party represents, warrants and undertakes to the other that:
11.1.1 it is validly incorporated and duly registered under Applicable Laws, and has power to conduct its business as conducted at the Commencement Date;
11.1.2 this Agreement shall, when executed, constitute valid and binding obligations of the party who is party to it and shall be enforceable in accordance with its terms;
11.1.3 the execution, delivery and performance of this Agreement do not violate the terms of any agreement, undertaking, judgment or court order which binds it;
11.1.4 it has the power, capacity and authority required to enter into and perform its obligations under this Agreement; and
11.1.5 no claim, litigation, proceeding, arbitration, investigation or material controversy is pending, has been threatened or is contemplated which would have a material adverse effect on each party's ability to enter into this Agreement or perform its obligations under this Agreement.
11.2 Except as expressly provided in this Agreement, neither party makes any representations or warranties to the other party, and each party hereby excludes all conditions, terms, representations and warranties regarding any matter including any representation or warranty or condition of fitness for purpose or in relation to the results to be derived or expected to be from the performance of either party's obligations, except to the extent expressly provided in this Agreement or to the extent that such conditions, terms, representations or warranties may not be excluded under Applicable Laws.
11.3 The Company makes no representations, warranties or undertakings that any Services is at any time uninterrupted, error-free or virus-free, and accepts no responsibility for any loss or damage occasioned in relation to the Customer's use or failure to use the Services. The relevant Service is delivered on an "as-is" and "as-available" basis.
12 Data Privacy
12.1 In relation to the obligations contained in this clause 12, the Company is acting as the data processor for the Customer in accordance with applicable data privacy laws. The Customer remains at all times the data controller in accordance with applicable data privacy laws.
12.2 To the extent that the Company is required to process Personal Data on behalf of the Customer, the Customer shall, to the extent reasonably practicable, identify the Personal Data and notify the Company of the nature of the Personal Data and any instructions for processing.
12.3 The Customer shall provide sufficient notice and obtain sufficient consent and authorisation, under any Applicable Laws, from any relevant data subject to permit the processing of any Personal Data by the Customer and its Third Party Provider in accordance with this Agreement.
12.4 If, in the course of performing its obligations under this Agreement, the Company processes any Personal Data that is used in the course of the Customer's business, then it shall:
12.4.1 do so solely on behalf of the Customer on the instructions of the Customer and shall not be entitled to use or otherwise process the Personal Data for any other purpose; and
12.4.2 not disclose the Personal Data to any other person, including any Third Party Provider, without the Customer's prior written consent in each case.
12.5 The Company shall not be liable for any complaint, claims or action by the Customer or a Third Party relating to the obligations set out in this clause 12 arising from the acts or omissions of the Company to the extent that such act or omission result from:
12.5.1 any failure by the Customer to comply with this clause 12; or
12.5.2 the Company complying with the express instructions of the Customer.
13 Sanctions and export control
13.1 The Customer will not, directly or indirectly, use the Company's products or services, or export, re-export, transfer, or otherwise make available such products or services to any subsidiary, joint venture partner, or any other person:
13.1.1 in any country or territory that is, at that time, subject to comprehensive Sanctions administered by OFAC (including, without limitation, the Crimea region, Cuba, Iran, North Korea, Sudan, and Syria);
13.1.2 to facilitate, directly or indirectly, any activities or business of, with, or related to, any person who is a designated target of any Sanctions or for any prohibited end-use; or
13.1.3 in any other manner that is likely to result in a violation or potential violation of any Sanctions by any person.
13.2 For the purpose of this clause 13, “Sanctions” means:
13.2.1 United Nations sanctions imposed pursuant to any United Nations Security Council Resolution;
13.2.2 U.S. sanctions administered by the Office of Foreign Assets Control ("OFAC") of the U.S. Department of the Treasury, the Bureau of Industry and Security ("BIS"), or any other U.S. Government authority or department;
13.2.3 EU restrictive measures adopted pursuant to any EU Council or Commission Regulation or Decision adopted pursuant to a Common Position in furtherance of the EU's Common Foreign and Security Policy;
13.2.4 UK sanctions administered by HM Treasury, the Export Control Organisation, or any other UK Government authority or department; and
13.2.5 any other economic sanctions or export control laws and regulations applicable to the Company or the Customer.
14 Ethical Business Practice/ Anti-bribery
Each party represents and warrants that it shall not make or offer to make any payment or gift directly or indirectly to any employee, officer or representative of any government, political party or candidate for political office under circumstances in which such payment could constitute a bribe, kickback or illegal payment under all Applicable Laws in relation to anti-bribery (including but not limited to the U.S Foreign Corrupt Practices Act). Without limiting the generality of the foregoing, each party further represents and warrants that under no circumstances, shall it make, cause or authorise any third party to make or cause any bribes, kickbacks, or illegal payments for the purpose of influencing a person’s acts or decisions or in order to obtain or retain business in connection with the Services provided/received hereunder. Each party agrees to comply with all Applicable Laws in relation to anti-bribery and further agrees that any failure by a party to comply with the provisions of this clause shall constitute a material and incurable breach of this Agreement for the purpose of clause 9.1.1.
15.1 Each party must:
15.1.1 keep the other party's Confidential Information confidential;
15.1.2 not use or exploit the other party’s Confidential Information in any way except in connection with its rights and obligations under this Agreement; and
15.1.3 not disclose the other party’s Confidential Information except:
(A) to its Personnel and Affiliates who have a need to know for the purposes of this Agreement; or
(B) as required by Applicable Law or a Regulator; provided, in each case, that the disclosing party promptly notifies the other party of its requirement to disclose, and co-operates with the other party's reasonable actions and requests in avoiding or limiting the disclosure.
15.2 Confidential Information does not include any information that:
15.2.1 is or becomes generally available to the public (other than as a result of its disclosure by the receiving party or its Personnel in breach of this clause 15);
15.2.2 was available to the receiving party on a non-confidential basis prior to disclosure by the disclosing party;
15.2.3 was, is or becomes available to the receiving party on a non-confidential basis from a person who, to the receiving party's knowledge, is not bound by a confidentiality agreement with the disclosing party or otherwise prohibited from disclosing the information to the receiving party;
15.2.4 was known to the receiving party before the information was disclosed to it by the disclosing party;
15.2.5 the parties agree in writing is not confidential or may be disclosed; or
15.2.6 is developed by or for the receiving party independently of the information disclosed by the disclosing party.
15.3 Nothing in this clause 15 shall restrict either party from disclosing:
15.3.1 this Agreement or any Confidential Information to its consultants, legal advisers and other professional advisors, auditors and bankers;
15.3.2 the fact of the existence of this Agreement and the terms and subject matter of this Agreement to any permitted assignee of this Agreement,
provided, in each case, that disclosure is made under terms of confidentiality no less restrictive than those set out in this clause 15.
16 Dispute resolution
16.1 Except for disputes to be resolved pursuant to clause 7.3, and subject to clause 16.2, if a dispute arises out of or in connection with this Agreement or the performance, validity or enforceability of it (Dispute) then the parties must comply with the following dispute resolution procedure:
16.1.1 either party shall give to the other written notice of the Dispute, setting out its nature and full particulars (Dispute Notice), together with relevant supporting documentation;
16.1.2 on receipt of the Dispute Notice, each party must nominate a sufficient senior Personnel who will attempt in good faith to resolve the Dispute;
16.1.3 if the nominated Personnel are for any reason unable to resolve the Dispute within 30 days of it being referred to them, the parties will attempt to settle it by mediation in accordance with the Hong Kong International Arbitration Centre (HKIAC) rules.
16.2 The commencement of mediation under clause 16.1.3 will not prevent the parties commencing or continuing arbitration in accordance with clause 16.3.
16.3 Subject to clause 16.4, any Dispute arising out of or in connection with this Agreement, including any question regarding its existence, validity or termination, shall be referred to and finally resolved by arbitration under the HKIAC Administration Arbitration Rules in force when the notice of arbitration is submitted, which rules are deemed to be incorporated by reference into this clause. The number of arbitrators shall be one. The seat, or legal place, of arbitration shall be Hong Kong. The language to be used in the arbitral proceedings shall be English. The decision of the arbitrator shall be final and binding on the parties, save in respect of manifest error. The costs of the arbitrator shall be borne equally between the parties or as the arbitrator otherwise directs.
16.4 Notwithstanding clauses 16.1, 16.2 and 16.3, nothing in this Agreement prevents:
16.4.1 either party from seeking urgent injunctive or similar relief from any court of competent jurisdiction if needed to enforce its rights under this Agreement; or
16.4.2 the Company from bringing any legal action or proceedings in the courts to recover any unpaid charges,
and to this end each of the parties irrevocably agrees that courts of Hong Kong have non-exclusive jurisdiction to settle any such dispute or claim.
17.1 Intellectual property
Neither party shall have the right to use the other party’s or its Affiliates’ trademarks, service marks or trade names or to otherwise refer to the other party in any marketing, promotional or advertising materials or activities without the prior written consent of the other party (such consent not to unreasonably withheld or delayed), except that the Company may list the Customer as a customer of the Company’s services in sales, promotional and advertising materials.
17.2 Force majeure
Neither party shall be in breach of this Agreement nor liable for delay in performing, or failure to perform, any of its obligations under this Agreement if such delay or failure results from events, circumstances or causes beyond its reasonable control (a Force Majeure Event). In such circumstances the time for performance of the affected obligations will be extended by the time of the delay caused by the Force Majeure Event.
17.3.1 A notice given to a party under or in connection with this Agreement shall be in writing and sent to the party at the address set forth at the top of this Agreement or as otherwise notified in writing to the other party in accordance with this clause 17.3. Any notice shall be duly served:
(A) on delivery if delivered by hand;
(B) forty-eight (48) hours after sending if sent by pre-paid post or recorded delivery;
(C) on the date and at the time that the courier's delivery receipt is signed, if delivered by commercial courier; or
(D) at the time of transmission, if sent by fax or email, unless sent after 17.00 in the place of receipt in which case it shall be deemed to have been received on the next Business Day in the place of receipt and provided that a copy has also been sent by post as set out in clause 12.3.1(B).
17.3.2 The Customer acknowledges and agrees that notices issued by the Company in connection with acceptance testing, Service Levels and Service Credits will be sent by email only and that for any such notices the Company shall not be required to send a copy of the notice by post under clause 17.3.1(D) for it to be duly served.
17.4.1 Except for changes to the General Terms and Conditions and Service Terms under clause 17.4.2 and otherwise save as expressly provided in this Agreement, no variation of this Agreement shall be effective unless it is in writing and signed by the parties (or their authorised representatives).
17.4.2 The Company reserves the right to make changes to these General Terms and Conditions and Service Terms at any time and such change shall be effective by the Company posting a revised version of these General Terms and Conditions on its website.
17.5.1 Subject to clauses 3.2 and 17.5.2, this Agreement is personal to the parties and neither party shall assign, transfer, mortgage, charge, subcontract or deal in any other manner with any of its rights and obligations under this Agreement without the prior written consent of the other party (such consent not to be unreasonably withheld or delayed).
17.5.2 The Company has the right to assign to any of its Affiliates part or all of its rights and obligations under this Agreement without the Customer’s consent.
17.6 Entire agreement
17.6.1 This Agreement including the Service Terms, the Service Level Agreement (if applicable) and Order Form constitutes the entire agreement between the parties and supersedes and extinguishes all previous drafts, agreements, arrangements and understandings between them, whether written or oral, relating to its subject matter.
17.6.2 Each party agrees that it shall have no remedies in respect of any representation or warranty (whether made innocently or negligently) that is not set out in this Agreement.
17.6.3 No party shall have any claim for innocent or negligent misrepresentation based upon any statement in this Agreement.
17.6.4 Nothing in this clause 17.6 shall limit or exclude any liability for fraud.
17.7.1 If any court or competent authority finds that any provision of this Agreement (or part of any provision) is invalid, illegal or unenforceable, that provision or part-provision shall, to the extent required, be deemed to be deleted, and the validity and enforceability of the other provisions of this Agreement shall not be affected.
17.7.2 If any invalid, unenforceable or illegal provision of this Agreement would be valid, enforceable and legal if some part of it were deleted, the parties shall negotiate in good faith to amend such provision such that, as amended, it is legal, valid and enforceable, and, to the greatest extent possible, achieves the parties' original commercial intention.
17.8.1 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 preclude or restrict the further exercise of that or any other right or remedy. No single or partial exercise of such right or remedy shall preclude or restrict the further exercise of that or any other right or remedy. A waiver of any right or remedy under this Agreement is only effective if given in writing.
17.8.2 The parties acknowledge that this Agreement is commercial in nature and each Party expressly and expressly and irrevocably waives any claim or right it may have had to immunity, including sovereign immunity, ac of state or otherwise for itself or with respect to any of its assets in connection with any external dispute resolution process.
17.9 No third party rights
No one other than a party to this Agreement, their successors and permitted assignees, shall have any right to enforce any of its terms.
17.10 Non-exclusive arrangements
Nothing in this Agreement diminishes, restricts or prejudices the rights of either party to enter into similar agreements with a third party or to otherwise compete with each other.
17.11 No partnership or agency
Nothing in this Agreement is intended to, or shall be deemed to, establish any partnership or joint venture between the parties, constitute a party the agent of the other party, nor authorise a party to make or enter into any commitments for or on behalf of the other party.
17.12 Further assurances
Each party shall, and shall use all reasonable endeavours to procure that any necessary third party shall, execute and deliver such documents and perform such acts as may reasonably be required for the purpose of giving full effect to this Agreement.
17.13.1 This Agreement is drafted in the English language. If this Agreement is translated into any other language, the English language text shall prevail.
17.13.2 Any notice given under or in connection with this Agreement shall be in the English language. All other documents provided under or in connection with this Agreement shall be in the English language, or accompanied by a certified English translation. If such document is translated into any other language, the English language text shall prevail.
17.14 Governing law
This Agreement and all documents made under this Agreement shall be governed by and construed and enforced in accordance with the laws of the jurisdiction of the Company entity which has entered into the Order Form.
18 Definitions and interpretation
18.1 In this Agreement, unless the context otherwise indicates:
Acceptance Testing Period has the meaning given in the relevant Service Terms;
Additional Charges means the additional charges (if any) payable for the Service set out in the Service Terms and/or Order Form;
Affiliate means in respect of a company, any other company directly or indirectly Controlling, directly or indirectly Controlled by or under direct or indirect common Control with such company;
Agreement has the meaning given in clause 1.1;
Applicable Laws means in relation to any party, all laws, statutes, orders, writs, injunctions, decrees, judgments, rules, provisions, regulations, directives, and guidelines which have legal effect, whether local, national, international or otherwise existing from time to time, including all rules, requirements, standards, guidelines and recommendations being entered and be in legal effect by any Regulator, as applicable to such party's business, "applicable" meaning as applicable to the relevant party, Third Party Provider or Affiliate or as applicable to the relevant obligations;
Business Day means a day other than a Saturday, Sunday or a public or general holiday in the location where the obligation is to be performed or in the jurisdiction of the the Company entity which has entered into the Order Form(whichever is appropriate);
Charge(s) means the Non-Recurring Charges, Recurring Charges and Additional Charges or any of them;
Commencement Date means the date on which the last party to this Agreement has executed the Order Form;
Confidential Information means any information which has been designated as confidential by either party in writing or that ought to be considered as confidential (however it is conveyed or whatever media it is stored) including information which relates to the business, affairs, properties, assets, trading practices, goods/services, developments, trade secrets, Intellectual Property Rights, know-how, personnel, customers and suppliers of either party and all personal and private data and includes the terms of and information in this Agreement;
Consequential Loss means any:
(a) loss of profits, use, anticipated savings, revenue, business opportunity, goodwill, reputation, economic loss or data; and/or
(b) indirect loss or damages, special, punitive or consequential loss;
Controlmeans with regard to an entity the legal, beneficial or equitable ownership, directly or indirectly, of 50% or more of the capital stock (or other ownership interest, if not a corporation) of such entity ordinarily having voting rights, or the equivalent right under contract to control management decisions with regard to relevant subjects, and "Controlling" and "Controlled" shall be defined accordingly;
Dispute has the meaning given in clause 16.1;
Dispute Notice has the meaning given in clause 16.1.1;
End User means any person who uses a Service or to whom a Service is resold and includes the Customer;
Force Majeure Event has the meaning given in clause 17.2;
General Terms and Conditions means these general terms and conditions;
HKIA has the meaning given in clause 11.1.3;
Hong Kong means the Hong Kong Special Administrative Region of the People’s Republic of China;
Indemnified Party has the meaning given in clause 9.4;
Insolvency Event means a situation where a party is unable to pay its debts or stops or threatens to stop or suspend payment of all or a material part of its debts, has a receiver, manager or liquidated appointed in respect of it or enters into or resolves to enter into any arrangement with its creditors;
Intellectual Property Rights means all rights conferred under statute, law and equity in and in relation to trade marks, trade names, logos, inventions, patents, designs, copyright, circuit layouts, know-how and trade secrets and all rights and interests in them or licences to use any of them;
Local Jurisdiction has the meaning given in clause 3.3;
Loss means all loss, liability, damage, cost and expense (including Taxes and reasonable legal fees);
Network means the communications network used to provide the Service;
Non-Recurring Charge has the meaning given in clause 5.1.1;
Order Form means an order (in a form approved by the Company) made by the Customer requesting supply of the Service;
Personal Data means (1) the information which relates to a living person and can be used to identify that person; and (2) it exists in a form in which access or processing is practicable;
Personnel means employees, officers, agents, consultants, contractors, sub-contractors and their employees, officers, agents, consultants, contractors and sub-contractors;
PRC means the People’s Republic of China, for the purposes of this Agreement, excludes Hong Kong, Taiwan and Macau;
Recurring Charges means the monthly recurring charges payable for the Service as set out in the Order Form;
Regulator means any government department and regulatory, statutory and other bodies, entities and committees which are entitled to regulate, investigate or influence the provision of telecommunications services;
Service means a service described in the Order Form and the Service Terms;
Service Credits means the service credits set out in the Service Level Agreement;
Service Extension Term has the meaning given in the Service Terms;
Service Initial Term has the meaning given in the Service Terms;
Service Level Agreement means the document titled “Service Level Agreement” which may be attached to the Order Form and incorporated into the Agreement if that option is selected in the Order Form;
Service Levels means the service levels set out in the Service Level Agreement;
Service Renewal Term has the meaning given in the Service Terms;
Service Terms means the document titled “Service Terms” attached to the Order Form;
Start Billing Date means the date determined in accordance with clause 5.2 of the Service Terms;
Taxes means all forms of taxation, duties, levies, imposts and other similar impositions of any jurisdiction whether central, regional or local;
Termination Fee means the amount of early termination charges specified in the Service Terms; and
Third Party Provider means any third party who provides services to the Company to enable the Company to provide all or part of the Service.
Third Party Provider means any third party who provides services to the Company to enable the Company to provide all or part of the Service or provides services forming part of the Services to the Customer on the Company’s behalf.
In this Agreement, unless the contrary intention appears:
18.2.1 headings are for convenience only and do not impart any meaning;
18.2.2 the singular includes the plural and vice versa;
18.2.3 references to any legislation includes all amendments, modifications, consolidation or re-enactment of that legislation;
18.2.4 a reference to $, US$ or USD is a reference to the currency of the United States of America;
18.2.5 a reference to a party is a reference to a party to this Agreement;
18.2.6 mentioning anything after “include”, “includes” or “including” does not limit the reference to anything else which might be included; and
18.2.7 other grammatical forms of defined words and expressions have corresponding meanings.