NTT Com Asia Limited - Macau Branch ( Company ) General Terms and Conditions

Transcription

1 1. THE AGREEMENT NTT Com Asia Limited - Macau Branch ( Company ) General Terms and Conditions 1.1 Company shall provide, and Customer shall pay for and receive, the Services subject to the following General Terms and Conditions (the Macau T&C ), the relevant Special Conditions (if any) and the relevant Service Orders (all the foregoing shall together constitute, the Agreement ). Each Service Order, when accepted by Company, shall be treated as having automatically incorporated, and be governed by the Macau T&C and the relevant Special Conditions. 1.2 In the event of any inconsistency amongst the Macau T&C, the relevant Special Conditions and the relevant Service Orders, the Service Orders shall prevail the Special Conditions, and the Special Conditions shall prevail the Macau T&C, provided that any terms specific to a given Service Order will not be automatically imputed into other Service Orders or permanently change the Macau T&C as they apply to other Service Orders unless such intention is explicitly and unequivocally stated in such a given Service Order. 1.3 For the avoidance of doubts, the General Terms and Conditions [LG- GTC-0001-QM-3.0] of NTT Com Asia Limited ( NTTCA GTC ) shall only be applicable to the Services provided outside Macau. The Macau T&C shall prevail the NTTCA GTC. 2. PROVISION OF THE SERVICES 2.1 Company shall provide the Services in accordance with the terms of the Agreement and shall endeavour to perform the Services in accordance with the respective service levels. 2.2 Company does not covenant, represent or warrant to Customer, expressed or implied that its provision of the Services shall be fault-free or continuous or that Services will be available from applicable Requested Service Start Dates or RFS Dates shown in Service Orders. If Customer intends to change or terminate the provision of Services before the Requested Service Start Dates or RFS Dates, Customer shall be

2 responsible to pay any costs incurred by Company and any actual costs incurred by the third-party provider for the provision of Services. Customer shall not dispute such amounts and treats the Company s records as final. 2.3 The provision of the Services by Company shall be subject to Customer satisfying Company s credit requirements, the Services being available at the Customer location and any other factors that may affect, in Company s sole opinion, the provision of the Services or any other business conducted by Company. 2.4 Customer acknowledges and agrees that Company has the sole discretion to determine or vary, without notice to Customer, the means of providing the Services to Customer, including varying the method, technology and route of delivery of the Services to Customer. 2.5 Customer shall provide Company the contact details of Customer representatives responsible for managing Customer s networks, facilities, equipments and servers ( Facilities ) and shall provide all authorizations required for Company to enter into their premises to perform the Services. 3. Third-Party Vendors 3.1 Company is entitled to engage any third-party service provider (the Vendor ) to perform any of the Services requested by the Customer. 3.2 Company may procure any Vendor to offer project or quotation to Customer in respect of any additional services. 3.3 The Customer agrees to allow the staff of the Vendor to enter into their premises to perform the Services. 4. Consultancy Fees 4.1 Customer shall pay to Company all fees for the Services (the Consultancy Fees ) and any related taxes, in accordance with the terms and conditions in this Agreement. 4.2 Customer shall undertake and commit to pay the Consultancy Fees for at least the term of this Agreement or during the actual period where the Services are in use, whichever is longer. 4.3 Customer agrees to reimburse Company for any expenses paid on behalf of Customer and charges, including taxes and tariffs but excluding profit tax, paid for the provision of Services arising from or caused by the

3 performance of this Agreement by Company. 4.4 All amounts payable by Customer to Company under this Agreement shall be net of taxes, bank service charges or any other charges and expenses. 4.5 The Customer shall pay the taxes that will be due for the provision of Services under this Agreement in accordance with the Laws of the Macau Special Administrative Region ( Macau ). 5. Payment Terms The Customer shall pay the Consultancy Fees as follows: a) One-off non-recurring charge: Customer shall pay within seven (7) days after successful installation, performance or delivery of Services; b) Monthly recurring charge: Customer shall pay on a monthly basis for the Services within seven (7) days from the issue date of invoice by Company. 6. Confidentiality 6.1 The receiving Party shall take all reasonable security measures in its best endeavors to keep all information provided by the disclosing Party as confidential (hereinafter referred to as Confidential Information ). 6.2 Such Confidential Information shall not be divulged, delivered or transferred to a third party without written consent from the disclosing Party even after termination of this Agreement. 7. Indemnity and Disclaimer 7.1 Customer acknowledges and accepts that any service interruption during configuration and maintenance of Service by Company or any Vendors. 7.2 Customer acknowledges and accepts that any service interruption during configuration and maintenance of Service by v shall not constitute a fault/default of Company and that therefore Company shall not be liable for any losses of Customer resulting thereof. 7.3 Company assumes no responsibility for the consequences resulting from failure in effective acquisition of Services due to improper use or management by Customer. Customer shall comply with the Services regulations, policies, normal practices and any applicable Special Conditions in using and operating the Services properly and legally.

4 7.4 Customer is fully liable for all political liabilities, legal liabilities and copyright disputes arising from its operations and none of such liabilities is connected with Company. 7.5 Customer shall indemnify and hold harmless Company for any losses, damages, obligations and expenses of any litigation, claims or any other requests against Company arising from or caused by negligence or willful default or acts or omissions concerning obligations under this Agreement. 7.6 No explicit or implied warranty or statement has been made by Company in respect of the Services. Company disclaims all explicit or implied warranty, including but not limited to warranty which is suitable for sales and fit for a particular purpose. 7.7 Company provides no warranty that: (i), the Services shall be uninterrupted, timely, confidential, faultless; or (ii) the quality of any products, services, information or other materials provided by Company and/or the vendors shall reach the level expected by Customer. 8. Limitation of Liability 8.1 To the extent permitted by law, Company assumes no liability for any direct, indirect, punitive, special, associated, consequential or precautionary compensation for damages arising from or in connection with the consultancy and related services (including but not limited any damages of computer systems, hardware and software, losses of data, or other functional breakdowns, or any other defects, viruses or other breakdowns caused by errors or computer worms, losses of business, income, profit, reputation damage, losses of use, data, electronically transmitted orders, or any other economic interests which are incurred by or associated with the use of the Services), whether such compensation for damages is incurred by default or any other reasons, even if Company has been informed of the possibility of the above compensation for damages in advance, or reasonably anticipated the possibility of the above compensation for damages. 8.2 The Parties agree that the total maximum liability amount undertaken by Company under this Agreement shall not exceed 50% of the aggregate Consultancy Fees received by Company (including any taxes, deductions and set offs).

5 9. Termination by Company 9.1 If Customer fails to settle the Consultancy Fee in accordance with the terms of this Agreement, Company is entitled to suspend the provision of Services until settlement has been made by Customer in full. 9.2 If Customer fails to settle the Consultancy Fee by the payment term pursuant to the terms of this Agreement, an interest for late payment shall be paid to Company at the legally established rate for commercial interest. 9.3 If Customer commits any illegal activities or is in breach of this Agreement, Company is entitled to terminate this Agreement with immediate effect and claim Customer for compensation in respect of any economic losses or adverse effects arising as such and legal liability shall be pursued. 9.4 Company is entitled to request for an early termination of this Agreement in writing and in such case this Agreement shall be automatically terminated on the termination date proposed by Company. 9.5 Company assumes no liability for any losses or damage that might arise from Customer due to the termination of the Agreement for non-payment of the Consultancy Fees. 10. Termination by the Customer 10.1 If Customer requests for an early termination within the Term of the Agreement, Customer is not entitled to demand for refund of any balance and deposit but shall be liable for the damages incurred by Company and shall pay a cancellation fee to Company which equals to the total monthly fees for the remaining Term Upon the termination of this Agreement, the rights and obligations of both Parties under clauses 6, 7 and 8 shall remain in effect If the Parties do not renew this Agreement, Customer shall remove the Facilities hosted within four (4) working days of the expiry of this Agreement, failing which a custody fee and cabinet occupied fee shall be paid to Company for each day overdue, equivalent to the pro-rata monthly fee. 11. Notices 11.1 All notifications made by each party to this Agreement in respect of the performance of its rights and obligations under this Agreement shall be in writing and in English language.

6 11.2 Each notice, demand or other communication given or made by the Parties shall be delivered or sent to the relevant Party at its address, fax number or set out below: Company Attention: Address: Facsimile: Customer Attention: Address: Facsimile: Assignment Customer shall not transfer its rights and obligations under this Agreement to any third party without prior written consent from Company. 13. Severability 13.1 Should any provision of this Agreement be deemed to be invalid or unenforceable by a court of competent jurisdiction, such provision shall be severed from this Agreement and the balance hereof shall not be affected and will continue in full force and effect The Parties hereto acknowledge that this Agreement constitutes the entire agreement between them and that this Agreement supersedes any previous oral or written agreements or arrangements between them dealing with the subject matter hereof. 14. Force Majeure 14.1 Force Majeure events stipulated in this Agreement include but not limited to acts of the government (including but not limited to change of policies, rules and regulations), acts of god, fire, explosions, windstorms, floods, earthquakes, typhoons, tides, lightning, blackouts, strikes, man-made destruction of telecommunication networks or interruption to backbone

7 networks and facilities of internet and international satellite networks due to adjustment, testing and expansion, problems caused by supply from the Vendors of Company or the relevant Vendors mentioned above, or wars Company shall not be held responsible for any failure in its performance of the liabilities under this Agreement due to any of the above Force Majeure events. 15. Amendments to this Agreement During the Term of this Agreement, Customer may request for addition or alteration to the Services. All amendments and supplements agreed between the Parties to this Agreement shall be made in writing. 16. Governing law The execution, validity, interpretation and performance of and resolution of disputes under this Agreement shall be governed by and construed in accordance with the officially published and publicly available laws of Macau. 17. Jurisdiction 17.1 Any dispute, controversy or claim arising out of or in connection with this Agreement, including inter alia its interpretation, application or operation, or the breach, termination or invalidity thereof, shall be settled by arbitration, to be conducted in accordance with the provisions of Decree Law No. 28/96/M, dated 11 June The seat of arbitration shall be Macau and the arbitration proceedings shall be conducted in English. 18. Definition and Interpretation Unless otherwise expressly stated, the following defined terms shall have the following meanings: Customer means any legal entity including any individual, corporation or unincorporated body, which has requested Company to provide the Services, details of whom will be set out in the applicable Service Order. Party refers to Company or Customer individually. Parties refers to both Company and Customer collectively

8 Term for a given Service Order means the duration for the Services as specified in that Service Order and subject to the applicable Special Conditions. Services means the consultancy and related services provided in Macau by Company as identified and defined in the Service Order. Service Order means the relevant order for Services submitted by Customer that is accepted by Company. Special Conditions means the relevant conditions governing the relevant Service provided to Customers.