IOT服务的特定调整

SA Clauses

Contents

1.1 (Replacing the first sentence of Clause 1.1 and the corresponding definitions with those listed in Column II in its entirely, with changes marked in bold)

1.1 In this SA and each Agreement, unless the context otherwise requires, the capitalised terms shall have the meaning set out below or in the Service Terms (for IOT Services): 

"Charge(s)" means all or any of the: (a) Non-Recurring Charges; (b) Recurring Charges (including monthly data plan fee); and (c) Other Charges (including common mobile service charges, including but not limited to over-usage charges and roaming charges);

“Force Majeure Circumstances” means circumstances beyond the reasonable control of a Party including but not limited to any inability or delay caused through fire, flood, earthquake, 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, epidemic (including COVID-19), pandemic or contagious disease, changes in Applicable Law, act of government or other competent regulatory authority including but not limited to a Regulator or other telecommunications operators or Third Party Provider or administrations or other competent authority, and any other events and circumstances falling under the definition of “Force Majeure Circumstances” in the Service Level Agreement; For the purpose of this SA, in addition to above, it shall include: (a) any event requiring the implementation of national or local telecommunications service continuity plans; (b) electrical or electromagnetic phenomena which disrupt the Mobile Network and/ or the Network;

"Intellectual Property Rights" means all rights conferred under statute, law and equity in and in relation to trademarks, trade names, logos, inventions, patents, designs, copyright, and related rights, moral rights, mask works, domain names, circuit layouts, know-how and any other intellectual property rights, in each case whether registered or unregistered trade secrets and all rights and interests in them or licences to use any of them, including above rights contained on the SIM Card and SIM Profile.

“Order Form” means an order form for each particular Service as executed between the Parties from time to time, in the form as specified by the Company or otherwise in a form and format (whether by way of email, notice, letter, a confirmation through online ordering platform or any other way in writing) agreed between the Parties and per which the Parties have confirmed/ reached agreement to an order of Service other than by way of execution or signing; “Order Forms” shall be interpreted accordingly and where appropriate, whenever the context refers to execution of Order Forms or an executed Order Form, it shall be interpreted to include Parties’ confirmation or agreement to an Order Form (other than by way of execution or signing) and an Order Form so confirmed or agreed by the Parties;

“Start Billing Date” means the corresponding Activation Date; “Termination Fee” means, unless as otherwise specified in the Service Terms and/or Order Form, an amount that covers:

(a) an amount equal to one hundred percent (100%) of the Charges payable for the unexpired remainder of the Service Initial Term or Service Renewal Term (if applicable, where such amount is ascertainable at the time of termination); and

(b) should there be any Commitment (defined under the Service Terms (for IOT Services) agreed by the Parties or Forecast  (defined under the Service Terms (for IOT Services)provided by the Customer, an amount equal to the number of SIM Card(s) and/or SIM Profile below the said Commitment or Forecast (as relevant) multiplied by the agreed Non-Recurring Charge for each SIM Card or SIM Profile; and

(c) an amount equal to the sum of the total Recurring Charges of all Activated SIM Card(s) and/or Activated SIM Profile for their remaining terms respectively; and

(d) liability, if any, imposed on the Company or the Customer (as the case may be) 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 (unless otherwise agreed by the Parties or determined by decision of any court or arbitral tribunal of competent jurisdiction) that would be suffered by the Company upon early termination of this SA or an Agreement in the circumstances specified in clause 10.4 herein;

1.1 (Inserting new definitions set forth in Column II into Clause 1.1 of SA)

“Activation Date” means, with respect to each SIM Card and/or SIM Profile, the earliest of the following that takes place:

i. If the SIM Card and/or SIM Profile is delivered in "Activated" state: the date the SIM Card and/or SIM Profile is provisioned on the connectivity management platform;

ii. If the SIM Card and/or SIM Profile is delivered in "Test" state: the date Customer or its End User exceeds the agreed test bundle; or,

iii. a time period as defined in the Order Form after the SIM Card and/or SIM Profile was provisioned into "Test" state without using the agreed test bundle.

“Activated SIM Card(s)” means the SIM Card(s) which have been delivered to and activated by the Customer or its End User on the Activation Date ;

“Activated SIM Profile” means the SIM Profile which has been downloaded and enabled on the eUICC Card on the Activation Date;

“IOT” means the name given to a range of the services relating to M2M Service, which provides with end-to-end connectivity between its fleet of Machines equipped with SIM Cards and Customers' site termination point regardless of the country where the SIM Card is located (as long as there are existing roaming agreements in place with the in-country operators), and whether the Machine is moving or standing still;

“M2M Service” means a range of the Company services, which provides Customers with end-to-end connectivity between its fleet of Machines equipped with SIM Cards and Customers' site termination point regardless of the country where the SIM Card is located (as long as there are existing roaming agreements in place with the in-country operators), and whether the Machine is moving or standing still;

"Machine" or "Remote Machine" means autonomous equipment located remotely from the server, which is able to communicate using a compatible Terminal by utilizing a packet data circuit. A Machine is able (if necessary) to establish a voice circuit on the GSM network to transmit data in DTMF format or enable a voice exchange between a End User and a voice server or a customer call centre;

"Mobile Networks" means all public mobile telecommunications networks, be they 2G (GSM, GPRS), EDGE, 3G (UMTS), HSDPA/HSUPA and H+, 4G, Wi-Fi, or any other future technology and/or telecommunications standards available via the Service;

"SIM Card" means the microchip card, inserted into a Terminal, used to identify Customer across all Mobile Networks. This may be a SIM, Micro SIM, USIM, or any other type of SIM card or chip. A chip is an integrated circuit component;

“SIM Profile” means a combination of a file structure, data and applications to be provisioned onto, or present on, an eUICC Card and which allows, when enabled, the access to a specific Mobile Networks infrastructure (source: GSMA, 30 June 2015). A "eUICC Card" means an UICC cards which are not easily accessible or replaceable, are not intended to be removed or replaced in the Device, and enables the secure changing of Profiles (source: GSMA, 30 June 2015). The GSMA Embedded SIM Specification also applies to removable M2M SIMs;

"Terminal" means a cellular modem enabling data exchanges between a Machine and a GSM-CSD, EDGE, CPRS, and/or UMTS communication network;

"Territory" means the geographical area agreed under each Order Form for the commercialization of the Value Added Solution;

"Value Added Solution" means Customer’s products integrating IOT as part of the solution to be offered by Customer to their End Users; as such Value Added Solution is defined in the Order Form and/or relevant Service Conditions.

2.1 (Replacing clause 2.1 with the clause in Column II in its entirety, with changes marked in bold)

2.1 An “Agreement” comprises of:

(a) the Order Form for the relevant Service (if any);

(b) the Service Terms for the relevant Service;

(c) the Specific Adjustments and Localised Adjustments as set out in Schedules 1 and 2 (if any and as applicable);

(d) the terms and conditions of this SA (other than the component documents mentioned in Clause 2.1(a), (b), (c) and (e); and

(e) the Service Level Agreement for the relevant Service (if any).

4.1A (Replacing clause 4.1A with the clause in Column II in its entirety, with changes marked in bolbd)

4.1A Customer may order the Service (e.g., SIM Cards and SIM Profile) by placing an Order Form and/or through an online ordering platform designated by Company. Customer shall provide all relevant technical specifications and administrative details relating to the requested Service specified in or attached to the Order Form. Customer shall ensure that all information provided is completed, accurate and sufficient for Company to provide the Service. Upon receipt of an Order Form from the Customer ordering the relevant Service, the Company shall be entitled to run an internal credit check on the Customer. If the Customer fails to pass the Company’s internal credit check, the Company may either: (1) reject such Order Form; or (2) impose certain conditions for such Order Form. 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 relevant Agreement (including this SA, the Order Form, Service Terms and Service Level Agreement (if applicable)) for that Service.

4.1B (inserting new clause 4.1B)

4.1B To enhance the Service provided to Customer, the Company reserves the right to change at any time platform features and/or network and/or IT systems used to deliver the Service. If such change affects significantly the Service delivered to the Customer, the Company will aim to notify Customer at least five (5) days prior to the expected date of such change.

Roaming partners and pricing may change from time to time, the Company reserves the right to update the price at its sole discretion, the Company will aim to notify the Customer by at least five (5) days’ prior written notice of any such change to the Customer.  

The Company cannot guarantee permanent roaming or any local regulatory policy. The Company has assumed that the Customer has the legal right and authorization to use the Service or, if applicable has the appropriate licence to sell a solution or Service in the Territory.

5.1(i), (j), (k), (l) & (m) & (n) (Inserting 6 new sub-clauses under Clause 5.1)

5.1(i) Customer will be liable for any use of the Services by Customer or the End Users. A breach of an Agreement by an End User will be deemed to be a breach by Customer and the Agreement will be understood accordingly.

5.1(j) Resale as part of Value Added Solution: Customer shall only resell the Service to its End Users and the Service to be resold shall be for integration in Customer’s own products (i.e., as part of the Value Added Solution of Customer’s products). Such integration will be in accordance with the conditions below:

(i) Customer shall only commercialize the Service as an integral part of the Value Added Solution and in the Territory;

(ii) the Service shall not be resold on a stand-alone basis, unless otherwise expressly agreed by the Company;

(iii) Customer shall procure that its End Users are made aware of and agree to comply with the terms and conditions regarding the use of the Service and the restrictions contained in this Clause; and

(iv) Customer shall irrevocably and unconditionally indemnify and keep indemnified the Company from and against all claims, liabilities, demands, proceedings, Losses, penalties, costs (including without limitation, reasonable legal and other professional costs) and reasonable expenses suffered or incurred by the Company arising out of or in connection with Customer or End Users failing to act in accordance with this Clause and/or Customer’s dealings with End Users in general, including any claims or other demands brought by an End User or end-user of the Value Added Solution.

5.1(k) Customer will, and will ensure that its End Users use the Services in accordance with:

a. this Agreement and any reasonable instructions given by the Company;

b. the Applicable Laws and regulations applicable in the countries where the Service are provided;

c. the Company’s instructions, typically security aspects, network and devices requirements.

5.1(l) Unless otherwise agreed with the Parties, Customer will not, and will ensure that its End Users will not, use IOT Service for voice over IP, peer-to-peer and streaming. In this Clause, "peer-to-peer" means a file exchange technology between Internet users, enabling two computers or mobile devices connected to the Internet to communicate directly without going through a central server and “streaming” means the capture of audio/video feeds and the reading of an audio or video file in real time, i.e. as it is received (the file is neither downloaded nor stored before it is read). When voice over IP, peer-to-peer, and streaming are agreed between the Parties, it will be strictly limited to what is permitted by Applicable Laws.

5.1(m) When applicable, Customer will provide in a timely and secure manner any information required to identify the End User whom the SIM Card and/or SIM Profile has been allocated to and any other information under its control which is legally required for the Company or its Affiliates to respond to an official judicial or regulatory request within the deadlines and in the format imposed by the law or by the judicial and/or regulatory authorities.

5.1(n) In the event a SIM Card is lost or stolen and/or a fraudulent use of a SIM Profile is detected, Customer shall immediately notify the Company and the Company will deactivate the access to the Mobile Network. This deactivation will be deemed to occur on the date the Company received the notification from Customer. Customer will be liable for any use of the SIM Card and/or SIM Profile before the deactivation. The Company will not be responsible for any inaccurate request of deactivation. The Service remains in force notwithstanding this deactivation. A replacement fee for the SIM Card and/or the SIM Profile may be charged in accordance with each Order Form.

11.6(c) (Replacing clause 11.6(c) in its entirety by the clause listed in Column II, with changes marked in bold)

11.6(c) breach of any Applicable Laws, the restriction to resell only as Value Added Solution under clause 5.1(j) and/or the obligations under Clause 15 (Sanctions and Export Control) by the Customer, any End User or its Personnel.

19.1A (inserting new clause 19.1A)

19.1A Intellectual Property Rights

(a) The Parties acknowledge and agree that all Intellectual Property Rights which may hereinafter be disclosed by a Party to the other Party shall, notwithstanding such disclosure, remain the exclusive property of the disclosing Party and the other Party shall not use or authorize the use of any such Intellectual Property Rights otherwise than as expressly permitted by this SA and for the purposes stated herein.

(b) The Parties acknowledge and agree that nothing in an Agreement shall confer or deem to confer on both Party, any right, title or interest in the other Party’s Intellectual Property Rights, and each Party hereby acknowledges that it shall not acquire any right, title or interest in respect thereof.

(c) When the SIM Cards are acquired by the Customer, the latter acknowledges that such transfer is only related to the medium. Any technical specification, Software, or Intellectual Property Rights remain the property of the Company or its supplier.

(d) The Company will grant to Customer and its End Users a non-exclusive and single non-transferable license to use the SIM Cards and its documentation strictly for the purpose of using the Service.

(e) Customer will not, and will procure that its End Users do not, copy any elements included in the SIM Cards or its documentation or cause them to be copied.