1.1 When we say:
- (a) "we", "us", "our" or "Company", it means China Telecom Global Limited, a company incorporated under the laws of Hong Kong with registered address at 19/F 21/F 28/F 29/F 30/F, Everbright Centre, 108 Gloucester Road, Wanchai, Hong Kong, or our Affiliate as specifically provided for in the Order Form;
- (b) "you", "your" or "Customer", it means you, as our customer, as specifically provided in the Order Form.
2. STRUCTURE OF AN AGREEMENT
2.1 An "Agreement" comprises:
- (a) these General Terms and Conditions ("these General T&C").
- (b) the Service Terms for the relevant Service;
- (c) the Service Level Agreement for the relevant Service; and
- the Order Form for the relevant Service.
- 2.2 If any of the documents referred to in Clause 2.1 is inconsistent with any of the others, then the documents will prevail in the descending order set out in Clause 2.1 to the extent of the inconsistency.
- 2.3 Each Agreement forms a separate agreement between the parties. Except as expressly provided under these General T&C, breach of each Agreement shall not be regarded as a breach of these General T&C.
- 2.4 For the avoidance of doubt, subject to Applicable Laws, the terms and conditions of each Agreement (including these General T&C) shall prevail over any inconsistent terms or conditions contained in, or referred to in, the Customer's purchase order, quotation, confirmation of order or specification, or implied by law, trade custom, practice or course of dealing.
3. DEFINITIONS AND INTERPRETATION
3.1 In this Agreement, unless the context otherwise requires:
- "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 2.1;
- "Applicable Laws" means in relation to any party, all laws, statutes, orders, rules, provisions, regulations, directives, and guidelines which have legal effect, whether local, national, international or otherwise existing from time to time, including all Regulator's rules, requirements, standards, guidelines and recommendations which have legal effect, and all notices and letters issued by the Company or relevant Affiliate of the Company to the Customer from time to time for the purpose of compliance, including but not limited to the Notice on MIIT Regulations of the Internet Access Service Market (有关工信部清理规范互联网网络接入服务市场的通知函) as applicable to any 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 (a) the location where the obligation is to be performed; (b) Hong Kong; or (c) the jurisdiction in which the relevant Affiliate of the Company is located who has entered into the Order Form (whichever is appropriate);
- "Charge(s)" means all or any of the: (a) Non-Recurring Charges; (b) Recurring Charges; and (c) Other Charges;
- "Commencement Date" means the date on which the last party to this Agreement has executed the Order Form for the relevant Service;
- "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/or its Affiliates and all personal and private data and includes the terms of and information in these General T&C and each Agreement;
- "Consequential Loss" means all or any of the following: (a) loss of profits, use, anticipated savings, revenue, business opportunity, goodwill, reputation, economic loss or loss of data; and/or (b) indirect loss or damages, special, punitive or consequential loss;
- "Control" means 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 19.1;
- "Dispute Notice" has the meaning given in Clause 19.1(a);
- "End User" means any person who uses a Service or to whom a Service is resold or sublet and includes the Customer;
- "Force Majeure Circumstances" means circumstances beyond the reasonable control of a party including but not limited to inability or delay caused through fire, flood, riot, act of God, severe weather, lightning, explosion, civil commotion, labour shortage or labour dispute, failure or shortage of power supplies, malicious damage, storm, tempest, act or threat of terrorism, war, military operations, act of government or other competent regulatory authority including but not limited to a Regulator or other telecommunications operators or administrations or other competent authority;
- "HKIAC" has the meaning given in Clause 19.1(c);
- "Hong Kong" means the Hong Kong Special Administrative Region of the People's Republic of China;
- "Indemnified Party" has the meaning given in Clause 12.5;
- "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 liquidator 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;
- "Loss" means any and all loss, damages, liabilities, actions, proceedings, claims, demands, costs, expenses, charges, Tax, duties, levies, interest, penalties, fines, assessments, and reimbursement orders (including all legal, professional and other expenses and amounts reasonably paid in settlement) paid, suffered or incurred directly as a result of a breach of any obligation under the Agreement;
- "Network" means the communications network used to provide and/or receive the relevant Service;
- "Non-Recurring Charges" means a one-off non-recurring charge (including the installation fee) as set out in the Order Form;
- "Order Form" means an order form for each particular Service as executed between the parties from time to time;
- "Other Charges" means any other charges payable for the Service set out in these General T&C, the Service Terms and/or Order Form, including the reconnection charge pursuant to Clause 10.3(b);
- "Personal Data" means various types of information that can be used separately or in combination with other information to identify a natural person, including but not limited to the name, date of birth, identification card number, address, telephone numbers, etc. of the natural person;
- "Personnel" means employees, officers, agents, consultants, contractors, sub-contractors and their employees, officers, agents, consultants, contractors and sub-contractors;
- "Ready for Service Date" has the meaning given in the Service Terms;
- "Recurring Charges" means the monthly recurring charges payable for the Service as set out in the Order Form;
- "Regulator" means any ministry, authority, agency or institution that may, from time to time, regulate, supervise and/or otherwise exercise state authority in relation to either party or the provision of telecommunications services;
- "Service" means a service described in the Service Terms and/or Order Form, including the Service Information set out in the Order Form for the relevant Service;
- "Service Credits" means the service credits as set out in the Service Level Agreement;
- "Service Information" means the service information in relation to each Service as set out in the Order Form;
- "Service Initial Term" has the meaning given in the Service Terms;
- "Service Level Agreement" means the detailed description of the Service Levels and Service Credits applicable to a Service as attached to the applicable Service Terms, if any;
- "Service Levels" means any service levels set out in the Service Level Agreement;
- "Service Renewal Term" has the meaning given in the Service Terms;
- "Service Terms"means the detailed description of a Service and service-specific terms and conditions applicable to that Service as attached to an Order Form;
- "Start Billing Date" means (a) the start billing date as set out in the relevant Order Form; or (b) if the Customer is deemed to have accepted the relevant Service pursuant to the applicable Service Terms, the same date as the Ready for Service Date if the Ready for Service Date is earlier than the start billing date as set out in the relevant Order Form;
- "Taxes" means all taxes, levies, duties, imposts, charges and withholdings of any nature, including taxes on gross or net income, profit or gains and taxes on receipts, sales, use and/or occupation and including value add tax and other supply taxes, income tax withholdings and social security, state health insurance and other employment related taxes, levies and contributions of any jurisdiction whether central, regional or local;
- "Termination Fee"means, unless as otherwise
specified in the Service Terms and/or Order Form, an
amount that covers:
- (a) a lump sum equal to the remaining balance of the total Recurring Charges that would have been payable by the Customer if the Customer has continued to receive the Service from the date of termination until the expiry of the applicable then-current Service Initial Term or Service Renewal Term (as the case may be) in which the Service is terminated; and
- (b) liability, if any, imposed on the Customer by any Third Parties, such as local exchange carriers or telecommunication service carriers, as a result of the Customer’s early termination.
- The Parties agree that the Termination Fee is a reasonable estimate of the liquidated damages that would be suffered by the Company upon early termination of an Agreement in the circumstances specified in clause 11.3 herein.
- "Third Party" means a legal entity, company or person that is not a party to this Agreement, and is not an Affiliate of any party to this Agreement;
- "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 Service to the Customer on the Company's behalf; and
- "Third Party Provider Contract" has the meaning given in Clause 5.3(a).
- In this Agreement, unless the contrary intention appears:
- (a) the headings are inserted for convenience only and shall not affect construction;
- (b) the singular includes the plural and vice versa;
- (c) references to one gender include all genders;
- (d) references to any legislation includes all amendments, modifications, consolidation or re-enactment of that legislation;
- (e) reference to a document are references to that document as amended or replaced from time to time;
- (f) a reference to "$", "US$" or "USD" is a reference to the currency of the United States of America, provided that if the parties agree that any invoices or payments under this Agreement will be in a currency other than US$ then for the purpose of calculating liability arising under Clause 12 such amounts shall be deemed converted into US$ using such exchange rate as the Company shall reasonably determine;
- (g) a reference to a "party" are to the Company or the Customer (as applicable) and references to the "parties" are, in each case, to both of them;
(h) reference to a
- (i) including within the phrase Business Day, shall mean a period of 24 hours running from midnight to immediately before the following midnight; and
- (ii) where such day falls on a non-Business Day, shall be construed as referring to the next day that is a Business Day;
- (i) references to a time of day are to the time in Hong Kong, unless any other relevant local time is specified in the Service Terms or any Order Form;
- (j) mentioning anything after "include", "includes" or "including" does not limit the reference to anything else which might be included; and
- (k) other grammatical forms of defined words and expressions have corresponding meanings.
4. TERM OF AN AGREEMENT
- 4.1 This Agreement shall become effective on the Commencement Date and shall remain effective unless terminated earlier in accordance with the Service Terms and/or the Order Form.
5. SUPPLY OF SERVICES
- 5.1 On execution of an Order Form for the relevant Service, 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 the Agreement (including the Order Form, the Service Terms and the Service Level Agreement (if applicable)) for that Service, subject to and in accordance with terms and conditions of each Agreement.
5.2 For the avoidance of doubt, the Company:
- (a) does not guarantee the provision of continuous or fault-free Services;
- (b) may, subject to Applicable Laws, 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 each Agreement; and
- (c) shall not, by virtue of each Agreement, be an exclusive supplier of any services (including the Service) to the Customer.
5.3 The Customer acknowledges and agrees that:
- (a) the Company is currently, or may be in the future, prohibited by Applicable Laws in certain jurisdictions (each, a "Local Jurisdiction") from providing certain part or all of the Service within such Local Jurisdiction. In order to ensure that the Services are available to the Customer in each such Local Jurisdiction, the Company has entered into contractual arrangements (each, a "Third Party Provider Contract") with its Affiliates or other Third Party Providers to provide such Service within each such Local Jurisdiction 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;
- (b) the Company may procure each Affiliate or Third Party Provider (as the case may be) to: (1) execute such other instruments as may be necessary to effect the Third Party Provider Contracts; and (2) make such filings and take such other actions that may be required by the Applicable Laws of each such Local Jurisdiction to effect the Third Party Provider Contracts;
- (c) if the 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: (1) execute any required Third Party Provider Contracts directly with the Company’s Affiliate or Third Party Providers (as the case may be); and/or (2) execute an Order Form containing additional required terms, preserving, to the fullest extent possible, the terms of this Agreement;
- (d) 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, (1) 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 (2) 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.
6. USE OF SERVICES
6.1 The Customer:
- (a) must comply with the Applicable Laws in relation to the use of the Service;
- (b) must ensure that it has all necessary licences and authorisations to use or resupply (as the case may be) each Service;
- (c) shall not resell or sublet the Service in violation of any Applicable Laws;
- (d) may only resell or sublet the Service to any End User to the extent permitted by Applicable Laws and, if it so resells or sublets 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 or sublet shall relieve the Customer of its obligations under this Agreement;
- (e) 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;
- (f) is solely responsible for any use of the Service or any equipment connected to the Service;
- (g) must ensure that each End User complies with the obligations under this Clause 6.1; and
(h) will not, and will ensure that each End User does not,
use or attempt to use a Service:
- (i) to breach any Applicable Laws;
- (ii) to infringe any other person's rights, including any Intellectual Property Rights;
- (iii) to expose the Company to any liability;
- (iv) to transmit, publish or communicate material which is illegal, defamatory, offensive, abusive, indecent or menacing;
- (v) in any way which damages, interferes with or interrupts the Service, the Network or any Third Party's Network; or
- (vi) with an intent to avoid incurring charges.
- 6.2 The Customer agrees to act in a timely manner and to provide properly competent and qualified Personnel with respect to its obligations under each Agreement and to any tasks to be undertaken by it, whether expressly set out in each 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.
6.3 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 all or any part of a 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:
- (i) 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
- (ii) 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.
7. INVOICES AND PAYMENT
7.1 The Customer must pay the Company the following Charges
for the Service:
- (a) the Non-Recurring Charges;
- (b) the Recurring Charges; and/or
- (c) the Other Charges,
- as such charges may be updated in accordance with the Service Terms and/or the Order Form.
7.2 The Company will issue an invoice:
- (a) for the Non-Recurring Charge in advance upon the execution of the Order Form for the relevant Service by the Company;
(b) for the Recurring Charges on a monthly basis and in
advance with the initial invoice issuable upon the Start
Billing Date, provided that:
- (i) 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
- (ii) 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
- (c) for the Other Charges in arrears at the start of the month following the month in which the charge is incurred.
7.3 Subject to Clause 9, the Customer must pay all invoices in
- (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.
7.4 The Company reserves the right at its sole discretion to
appoint from time to time an Affiliate and/or a Third Party as
- (a) to issue invoices to the Customer on behalf of the Company; and/or
- (b) to collect and receive payments due under an Agreement from the Customer on behalf of the Company,and the Customer acknowledges and agrees to such arrangements.
7.5 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,:
- (a) 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
- (b) net or set off amounts payable by the Company to the Customer under that or any other Agreement or contract between the parties.
- 7.6 Unless expressly specified in an Agreement, the Customer's obligation to make payment of invoiced Charges is absolute, and the Customer shall not withhold payment of the invoiced Charges due for any reason, including due to a change of the Customer's billing party, Customer's internal restructuring or otherwise.
- 7.7 Customer agrees that, where the Customer requires the Charges to be billed in Renminbi, Customer will need to designate a China entity to settle those payments in Renminbi and for this purpose, Customer shall and it shall procure its designated payer to execute payment agreements in the form specified by the Company. Customer further acknowledges and agrees that, there shall be (ii) a Services and Payment Agreement which shall be executed between the Customer and China Telecom Global Limited (hereinafter called “CTG”); and (ii) an Onshore Services and Payment Agreement which shall be executed between Customer’s designated China payer entity and China Telecom Corporation Limited– Global Business Department (being the designated China entity of the Company and China Telecom Global Limited). The Company (if it is not CTG), hereby appoints and authorises CTG to execute the Services and Payment Agreement on Company’s behalf, the Company confirms that CTG is its Affiliate.
- 8.1 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.
- 8.2 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.
- 8.3 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 an Agreement then, notwithstanding anything to the contrary contained in such 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 such deduction or withholding been made. The Customer must also notify the Company in writing regarding the requirement and provide the Company with appropriate documentation to support such withholding or deductions.
- 8.4 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 limited to official tax receipts issued by the local authority evidencing payment of taxes.
- 8.5 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 an Agreement or to verify any Charges levied hereunder.
- 8.6 If any Affiliate of the Company or Third Party Provider is in a position to issue an invoice under an Order Form directly to the Customer pursuant to Clause 5.3 above, the tax implications of such Order Form have to be negotiated and agreed by the Parties on a case by case basis, in which case this Clause 8 shall not be applicable.
9. BILLING DISPUTES
9.1 If the Customer reasonably disputes any Charges (each a
“Billing Dispute”), the Customer shall:
- (a) pay the undisputed portion of the invoiced charges by the due date for the relevant invoice; and
- (b) notify the Company in writing of the disputed amount providing the invoice number and reasonable details as to why the amount is disputed within  Business Days of the date of the relevant invoice.
- 9.2 Any Billing 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. A Billing Dispute may not be brought where the amount of disputed Charges constitutes less than [two per cent (2%)] of the total Charges for that month.
- 9.3 In the event of a Billing Dispute, the parties will investigate the matter and use reasonable endeavours to resolve the disputed charges within  Business Days of the receipt of notice of the Billing Dispute. If the parties are unable to resolve the Billing Dispute informally in good faith within those  Business Days, without prejudice to its other rights and remedies the Company reserves the right to suspend or terminate the relevant Service.
- 9.4 Following resolution of the Billing 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.
10. SUSPENSION OF SERVICE
10.1 Subject to Clause 10.2, the Company may suspend the
provision of all or any part of each Service to the Customer
at any time:
- (a) in an emergency or to comply with Applicable Laws or an order, instruction or request of a Regulator;
- (b) if in the Company's reasonable opinion the provision of a Service is liable to cause death or personal injury or damage to property;
- (c) if any Regulator directs or recommends same;
- (d) if a Third Party Provider ceases, or intends to cease, to supply to the Company services that form part of the Service;
- (e) if the Customer fails to pay any amount under any Agreement between the parties by its due date and that outstanding amount is not paid within 5 Business Days of the Customer receiving notice requiring that outstanding amount to be paid;
- (f) if the Customer is in breach of Clause 6.1; or
- (g) where the Company has a right to terminate an Agreement.
- 10.2 Unless otherwise specified, where possible and subject to Applicable Laws 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.
10.3 Where a Service has been suspended in accordance with:
- (a) Clause 10.1(a), 10.1(b), 10.1(c) or 10.1(d), the Customer will not be liable to pay the Recurring Charges for the Service during the suspension period; or
(b) Clause 10.1(e), 10.1(f) or 10.1(g), during the
- (i) the Customer must continue to pay the Recurring Charges for the Service; and
- (ii) the Customer may be required to pay the Company a reconnection charge when the Service is reconnected.
11.1 Either party may terminate an Agreement:
- (a) where the other party is, respectively in material breach of any of its warranties, obligations or undertakings under such Agreement and that breach is not remedied  Business Days after the breaching party has received notice to do so;
- (b) where a Force Majeure Circumstance continues for more than twenty (20) Business Days; or
- (c) in accordance with the Service Terms and/or the Order Form,
- provided always that if the Service is provided by an Affiliate of the Company or any Third Party Provider, the notice required for termination of such 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 that notice period specified in the Order Form.
11.2 The Company may terminate an Agreement immediately
without further liability by notifying the Customer if:
- (a) any breach by the Customer of any Applicable Laws would result in any prohibition or restriction on the Company’s ability to perform its obligations under this Agreement or result in this Agreement or any material obligations under it being unenforceable or contrary to Applicable Laws; or
- (b) the Customer suffers an Insolvency Event;
(c) 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:
- (i) where a change of Control occurs via a single transaction or series of related transactions;
- (ii) where all or substantially all of the assets of the Customer are acquired by any Third Party;
- (iii) where the Customer is merged with or into another entity to form a new entity; or
- (iv) the Customer disposes of its division responsible for acquiring the Service by spin-off, public offering or sale to a Third Party,
- under which circumstances the Customer shall give the Company notice of any acquisition or agreement to acquire giving rise to any right for the Company to terminate pursuant to Clause 11.2 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.
11.3 On termination of an Agreement by:
- (a) the Company in accordance with Clause 11.1(a), 11.1(b), 11.1(c) or 11.2; or
- (b) the Customer in accordance with Clause 11.1(c),
without prejudice to the Company's other rights and
remedies, the Customer must pay the Company:
- (i) the Termination Fee in addition to any outstanding charges payable pursuant to Clause 11.4(b); and
- (ii) the aggregate charges, payable to any Affiliate of the Company 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.
11.4 On termination of an Agreement by either party for any
- (a) all Confidential Information of the Company must on the request of the Company be destroyed or returned to the Company by the Customer;
- (b) all outstanding charges and invoices which have yet to be paid must be paid by the Customer;
- (c) 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 in connection with that Agreement;
- (d) accrued rights and obligations of a party are not affected; and
- (e) Clauses 6, 11.3, 11.4, 12, 13, 14, 15, 16, 17, 18, 19 and 20.15 will survive termination.
11.5 Nothing in any Agreement shall limit or exclude the
Customer's liability for any of the following:
- (a) any Charges properly incurred, invoiced and due and payable to the Company in accordance with any Agreement; and
- (b) any Termination Fees due and payable following a proper termination of any Agreement.
- 12.1 The Company's maximum liability to the Customer for Loss suffered or incurred in connection with each Service under an Agreement, whether for negligence, breach of contract, misrepresentation or otherwise, shall be limited to an amount equal to 100% of the total aggregate amount paid by the Customer under that Agreement during the Service Initial Term of that Agreement, except that if a Service Renewal Term has been agreed for that Agreement in accordance with these Service Terms then the Company's maximum liability to the Customer for Loss suffered or incurred in connection with an Agreement is limited in aggregate to 100% of the total amount paid by the Customer under that Agreement during the Service Renewal Term of that Agreement.
12.2 Nothing in any Agreement shall limit or exclude either
party's liability for any Loss arising from:
- (a) death or personal injury caused by negligence;
- (b) fraudulent misrepresentation or fraud;
- (c) any breach of Clause 14 or 15; or
- (d) any other liability to the extent it cannot be limited or excluded under Applicable Laws.
- 12.3 Subject to Clause 12.2, neither party shall be liable under or in connection with any Agreement for any Consequential Loss.
- 12.4 A party's liability to the other party for Losses under Clauses 12.5 and 12.6 shall not be limited by Clause 12.1 above.
12.5 Each party shall indemnify the other party ("Indemnified
Party") for all Loss suffered or incurred by the Indemnified
- (a) arising from personal injury or death to the Indemnified Party's Personnel; and/or
- (b) 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 an Agreement.
12.6 The Customer shall indemnify the Company for all Loss
suffered or incurred by the Company, its Personnel, Affiliates
or Third Party Providers arising from:
- (a) any claim by the Customer's Personnel;
- (b) any claim by any End User or the Customer's Personnel; and
- (c) breach of any Applicable Laws by the Customer, any End User or its Personnel.
- 12.7 Without prejudice to Clause 12.6 above, 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.
- 12.8 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 is the provision of the Service Credits.
13.1 Each party represents, warrants and undertakes to the
- (a) it is validly incorporated and duly registered under Applicable Laws, and has power to conduct its business as conducted at the Commencement Date;
- (b) 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;
- (c) the execution, delivery and performance of each Agreement do not violate the terms of any agreement, undertaking, judgment or court order which binds it;
- (d) it has the power, capacity and authority required to enter into and perform its obligations under each Agreement; and
- (e) 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 each Agreement or perform its obligations under each Agreement.
- 13.2 Except as expressly provided in an 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 an Agreement or to the extent that such conditions, terms, representations or warranties may not be excluded under Applicable Laws.
- 13.3 The Company makes no representations, warranties or undertakings that any Service 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 Service. The relevant Service is delivered on an "as-is" and "as-available" basis.
14. DATA PRIVACY
- 14.1 In relation to the obligations contained in this Clause 14, the Company is acting as the data processor (or equivalent) for the Customer in accordance with applicable data privacy laws. The Customer remains at all times the data controller, data user (or equivalent) in accordance with applicable data privacy laws and the Company only processes Personal Data in accordance with the terms and conditions of the Agreement.
- 14.2 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.
- 14.3 The Customer shall provide sufficient notice and obtain sufficient consent and authorisation, under any Applicable Laws, from any relevant data subjects to permit the processing of any Personal Data by the Customer and its Third Party Provider in accordance with an Agreement.
- 14.4 The Customer agrees and shall provide sufficient notice and obtain sufficient consent and authorisation from any relevant data subjects that their Personal Data may be provided to Affiliates of the Company for compliance purpose or other requirements under Applicable Laws, including but not limited to the Cyber Security Law of the People's Republic of China.
14.5 If, in the course of performing its obligations under an
Agreement, the Company processes any Personal Data that is
used in the course of the Customer's business, then it shall:
- (a) 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
- (b) not disclose the Personal Data to any other person, including any Third Party Provider, without the Customer's prior written consent in each case.
14.6 The Company shall not be liable for any complaint, claims
or action by the Customer or any Third Party relating to the
obligations set out in this Clause 14 arising from the acts or
omissions of the Company to the extent that such act or
omission result from:
- (a) any failure by the Customer to comply with this Clause 14; or
- (b) the Company's compliance with the express instructions of the Customer.
15.1 Each party shall:
- (a) keep confidential, and procure that its Personnel, Affiliates and any Third Party Provider (collectively, its "Representatives") keep confidential, all Confidential Information of the other party and its Representatives, including the fact of the existence of any Agreement (the "Other Party's Confidential Information");
- (b) use the same degree of care in relation to the Other Party's Confidential Information as it normally uses to avoid unauthorised disclosure of its own Confidential Information;
- (c) use, and procure that its Representatives use the Other Party's Confidential Information only in the performance of its obligations under any Agreement and make no further disclosure of the Other Party's Confidential Information, except as required by Applicable Laws; and
- (d) only disclose to its Representatives the Other Party's Confidential Information that is strictly required for the performance of its obligations under any Agreement.
15.2 The obligations in this Clause 15 shall not apply to any
(a) is required to be disclosed:
- (i) by Applicable Laws;
- (ii) at the request or recommendation of any Regulator having authority over the party making the disclosure; or
- (iii) by the rules of any relevant stock exchange,
- 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;
- (b) was already in the possession of the party making the disclosure without an obligation of confidentiality when it was received from the other party or its Affiliates;
- (c) was already in the public domain at the time of disclosure, except as a result of a breach of any Agreement;
- (d) was independently developed without access to the other party's or any of its Affiliates' Confidential Information; or
- (e) is disclosed for the purpose of any arbitral or judicial proceedings arising out of an Agreement or any other document entered into pursuant to an Agreement.
- (a) is required to be disclosed:
15.3 Nothing in this Clause 15 shall restrict either party
- (a) any Agreement or any Confidential Information to its consultants, legal advisers and other professional advisors, auditors and bankers; or
- (b) the fact of the existence of any Agreement and the terms and subject matter of any Agreement to any permitted assignee of such 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. SANCTIONS AND EXPORT CONTROL
- 16.1 Each party represents, warrants and undertakes that it shall not engage in any agreement, arrangement, practices or conduct which would amount to a violation or potential violation of any Sanctions. Each party further acknowledges and agrees that any failure by a party to comply with the provision of this Clause shall constitute a material and incurable breach of these General T&C for the purpose of Clause 11.1(a).
16.2 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
- (a) in any country, region or territory that is, at that time, subject to comprehensive Sanctions administered by the Office of Foreign Assets Control ( "OFAC") of the U.S. Department of the Treasury or the Bureau of Industry and Security ( "BIS") (including, without limitation, the Crimea region, Cuba, Iran, North Korea, Sudan, and Syria);
- (b) 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
- (c) in any other manner that is likely to result in a violation or potential violation of any Sanctions by any person.
16.3For the purpose of this Clause 16, “Sanctions” means:
- (a) United Nations sanctions imposed pursuant to any United Nations Security Council Resolution;
- (b) U.S. sanctions administered by the OFAC, the BIS, or any other U.S. Government authority or department;
- (c) 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;
- (d) UK sanctions administered by HM Treasury, the Export Control Organisation, or any other UK Government authority or department; and
- (e) any other economic sanctions or export control laws and regulations applicable to the Company or the Customer.
17. ETHICAL BUSINESS PRACTICES / ANTI-BRIBERY
- 17.1 Each party represents, warrants and undertakes that it shall not make or offer to make any payment or gift directly or indirectly to any government entity, public entity, State-owned enterprise, political party (or candidate for political office), privately-owned entity, or any employee, officer, or representative thereof 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, UK Bribery Act, the Prevention of Bribery Ordinance of Hong Kong, the Criminal Law of the People's Republic of China, and the Anti-Unfair Competition Law of the People's Republic of China).
- 17.2 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, or obtain undue competitive advantages, in connection with the Service 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 11.1(a).
18. COMPETITION LAW
- 18.1 Each party represents, warrants and undertakes that it shall not engage in any agreement, arrangement, practices or conduct which would amount to an infringement of the prohibitions under all applicable Competition Law, including but not limited to Chinese Anti-Monopoly Law and relevant regulations). Each party further acknowledges and agrees that any failure by a party to comply with the provision of this Clause shall constitute a material and incurable breach of this Agreement for the purpose of Clause 11.1(a).
- 18.2 For the purpose of this Clause, "Competition Law" means the national and directly effective legislation of any jurisdiction which governs the conduct of companies or individuals in relation to restrictive or other anti-competitive agreements or practices (including, but not limited to, cartels, pricing, resale pricing, market-sharing, bid-rigging), dominant or monopoly market positions and the control of acquisitions or mergers.
19. DISPUTE RESOLUTION
19.1 Except for disputes to be resolved pursuant to Clause
9.3, and subject to Clause 19.4, if a dispute arises out of or
in connection with an Agreement or the performance, validity
or enforceability of either of them (
"Dispute") then the parties must comply with the
following dispute resolution procedure:
- (a) 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;
- (b) on receipt of the Dispute Notice, each party must nominate a sufficient senior Personnel who will attempt in good faith to resolve the Dispute;
- (c) if the nominated Personnel are for any reason unable to resolve the Dispute within twenty (20) Business Days of it being referred to them, the parties will attempt to settle it by mediation in accordance with the rules of the Hong Kong International Arbitration Centre ( "HKIAC").
- 19.2 The commencement of mediation under Clause 19.1(c) will not prevent the parties commencing or continuing arbitration in accordance with Clause 19.3.
- 19.3 Subject to Clause 19.4, any dispute, controversy or claim arising out of or relating to an Agreement, or the breach, termination or invalidity thereof, shall be settled by arbitration in accordance with the HKIAC Administration Arbitration Rules in force when the notice of arbitration is submitted and as may be amended by the rest of this Clause. The appointing authority shall be the HKIAC. The place of arbitration shall be in Hong Kong at the HKIAC. There shall only be 1 arbitrator. The proceedings shall be held in English. The arbitrator’s decision shall be final and binding. Costs shall be apportioned based on the arbitrator’s findings.
19.4 Notwithstanding Clauses 19.1, 19.2 and 19.3, nothing in
an Agreement prevents:
- (a) either party from seeking urgent injunctive or similar relief from any court of competent jurisdiction if needed to enforce its rights under an Agreement; or
- (b) 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.
20.1 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 be 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.
20.2 Force majeure
- Neither party shall be in breach of an Agreement nor liable for delay in performing, or failure to perform, any of its obligations under the Agreement if such delay or failure results from Force Majeure Circumstances. 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 Circumstances.
(a) A notice given to a party under or in connection with
this Agreement shall be in writing and sent to the party
in charge of the relevant matters as set forth in the
Order Form or as otherwise notified in writing to the
other party in accordance with this Clause 20.3. Any
notice shall be duly served:
- (i) on delivery if delivered by hand;
- (ii) forty-eight (48) hours after sending if sent by pre-paid post or recorded delivery;
- (iii) on the date and at the time that the courier's delivery receipt is signed, if delivered by commercial courier; or
- (iv) 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, subject to Clause 20.3(b), provided that a copy has also been sent by post as set out in Clause 20.3(a)(ii).
- (b) 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 20.3(a)(iv) for it to be duly served.
- (a) A notice given to a party under or in connection with this Agreement shall be in writing and sent to the party in charge of the relevant matters as set forth in the Order Form or as otherwise notified in writing to the other party in accordance with this Clause 20.3. Any notice shall be duly served:
- Save as expressly provided in an Agreement, no variation of an Agreement shall be effective unless it is in writing and signed by the parties (or their authorised representatives).
20.5 Assignment and Sub-contracting
- (a) Subject to Clauses 5.2(b), 7.4 and 20.5(b), each Agreement is personal to the parties and neither party shall assign, novate, transfer, mortgage, charge, subcontract or deal in any other manner with any of its rights and obligations under an Agreement without the prior written consent of the other party (such consent not to be unreasonably withheld or delayed).
- (b) TheCompany has the right to assign, transfer or novate to any of its Affiliates part or all of its rights and obligations under an Agreement without the Customer's consent.
- (c) Neither party shall subcontract any of its obligations under an Agreement without the other party's prior written consent in each case, except that the Company may subcontract its obligations to its Affiliates and to Third Party Providers.
20.6 Entire agreement
- Each Agreement constitute the entire agreement between the parties relating to their subject matter and supersedes and extinguishes all previous drafts, agreements, arrangements and understandings between them, whether written or oral, relating to its subject matter.
- (a) If any court or competent authority finds that any provision of an 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 the Agreement shall not be affected.
- (b) If any invalid, unenforceable or illegal provision of an 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.
- No failure or delay by a party to exercise any right or remedy provided under an 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 an Agreement is only effective if given in writing.
20.9 Third party rights
- A person who is not a party to any Agreement has no right to enforce any terms of such Agreement under the Contracts (Rights of Third Parties) Ordinance (Cap. 623) or otherwise.
20.10 Non-exclusive arrangements
- Nothing in any 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.
20.11 No partnership or agency
- Nothing in this any 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.
20.12 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 each Agreement.
- This Agreement may be executed in several counterparts, each of which when executed shall constitute a duplicate original, but all of which together shall constitute the one agreement. For the purpose of this Agreement, a scanned copy or a facsimile copy of this signed Agreement shall be deemed to have the same legal effect as an original signed copy of this Agreement.
- (a) Each Agreement is drafted in the English language. If an Agreement is translated into any other language, the English language text shall prevail.
- (b) Any notice given under or in connection with this each Agreement shall be in the English language. All other documents provided under or in connection with each 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.
20.15 Governing law
- This Agreement and all documents made under this Agreement (including each Order Form, Service Terms and Service Level Agreement) shall be governed by and construed and enforced in accordance with the laws of Hong Kong.
20.16 Electronic Signature
- Any reference in this Agreement and all documents made under this Agreement (including each Order Form, Service Terms and Service Level Agreement) to a writing signed by a party shall, notwithstanding anything to the contrary in this Agreement, be read and construed to allow any form of electronic signature.
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