Terms and Conditions
These General Terms and Conditions of Supply of Telecommunications Services represent PCCW Global’s standard terms and conditions of supply and in the absence of fully executed terms of supply at the time of Order Form acceptance, govern all Order Forms for Services to be provided by PCCW Global.
1. Definitions and Rules of Interpretation
1.1 For purposes of this Agreement, capitalized words shall have the meaning assigned to them under this Section or as elsewhere defined in the Agreement:
(a) Acceptable Use Policy shall mean PCCW Global’s policy on usage of the Services set forth at www.pccwglobal.com, as amended from time to time, which Acceptable Use Policy is incorporated herein by this reference.
(b) Agreement means these General Terms and Conditions generally and with respect to any Service provided hereunder, shall include the Specific Terms and the Order Form relating to each Service.
(c) Affiliate means, in relation to a Party, any other entity which directly or indirectly controls, is controlled by, or is under common control with such Party.
(d) Applicable Law means any laws, statutes or ordinances and any regulations, rules, practice notes, circulars and any other notification issued by any government entity, taxing authority, or regulatory authority pursuant to such laws, statutes and ordinances that apply to the Services or Parties in any jurisdiction.
(e) Cancellation Charge means the liquidated damages that may be payable by the Customer as described in clause 13.4.
(f) Charges means the charges payable for each Service, as set forth in the relevant Order Form, including, without limitation, any one time fees, recurring, usage, rental, or other fees, or other charges payable by Customer in relation to a Service pursuant to the terms of this Agreement.
(g) Consequential Loss means any loss of profit, loss of goodwill, loss of production, loss of business, loss of opportunity, business interruption, loss of revenue, loss of contract, loss of anticipated savings, loss or corruption of data or loss of privacy of communications; and any consequential, special, indirect, exemplary or punitive damages, of any nature.
(h) Customer Equipment means all hardware, software and consumables dedicated for the provision of the Services but owned, licensed or controlled by the Customer, a Customer Affiliate or a third party agent of the Customer.
(i) Customer Requested Target Completion Date means the date on which the Customer requests that the Service be provided and which date is specified in the applicable Order Form.
(j) Effective Date means the date set forth above, or, if no date is set forth, then the date of the first Customer Order Form hereunder.
(k) Firm Order Commitment Date or FOC Date means the date on which the Customer is intended to be able to use the Service and which date shall be specified in writing by PCCW Global to the Customer via email or letter as the FOC Date after the site survey has been completed.
(l) Force Majeure Event means an event outside the reasonable control of a Party, including, without limitation, industrial disputes of any kind, war declared or undeclared, blockade, disturbance, a natural disaster such as lightning, earthquake, storm, flood, explosion or meteor, fire, epidemics, law or any power lawfully exercised by a government agency, any change in any Applicable Law, inability or delay in granting governmental or other approvals, consents, permits, licenses or authorities, or a telecommunication network outage or degradation.
(m) Intellectual Property Rights means all intellectual property rights subsisting throughout the world conferred under statute, common law and equity, including, without limitation, patents, copyrights, trademarks.
(n) Interest Rate means 1.5% per month or, if such amount is not permitted by governing law, the highest rate permitted by law.
(o) Loss includes any loss, costs, damages, expense, liability and charge incurred by a Party, including Consequential Loss.
(p) Minimum Contract Period means the fixed period during which Customer agrees to pay for the Services, commencing on the Service Commencement Date, and as used herein, refers to both the initial term of an Order Form or any renewal term of the same Order Form.
(q) Network means the telecommunications network owned or operated by PCCW Global or its Third Party Supplier and used in connection with providing the Services and all facilities and associated equipment used in, or in connection with, that network, but excluding the Customer Equipment.
(r) Network User Identity means an identification number, password and/or pass code assigned by PCCW Global to the Customer that allows the Customer to use a Service.
(s) Order Form means a written or electronic application (in a form approved by PCCW Global) made by the Customer requesting provision of one or more Services or modifications to one or more Services.
(t) Parties means PCCW Global and Customer collectively.
(u) Party means PCCW Global or Customer.
(v) Premises means the location or locations occupied by Customer or its end user to which a Service is delivered, as indicated in an Order Form.
(w) Service means a service supplied by PCCW Global to the Customer under this Agreement pursuant to an Order Form, and which service is more fully described in the Specific Terms.
(x) Service Commencement Date means the date on which PCCW Global delivers the Service to Customer pursuant to clause 2.2.
(y) Service Commencement Notice or SCN means a written or electronic notice from PCCW Global to Customer stating that the applicable Service is operational.
(z) Service Provision Guarantee Date has the same meaning as FOC Date.
(aa) Service Demarcation Point means the point where PCCW Global’s Service, as described in the Order Form, ends.
(bb) Service Equipment means the equipment (including any software contained in that equipment) installed at a Customer Premises and owned or controlled by PCCW Global or a Third Party Supplier, which is not Customer Equipment and which is used in connection with the provision of Services to Customer.
(cc) Service Levels means, where applicable to a Service, the committed levels of service in accordance with which PCCW Global will use its reasonable endeavours to provide that Service, as specified in the Specific Terms and, unless otherwise set forth in the applicable Service Level, excludes services procured from Third Party Suppliers.
(dd) Service Numbers means the numbers allocated to the Customer by PCCW Global which shall include, but is not limited to, telephone numbers, mailbox numbers, Network User Identity, IP addresses, or circuit reference numbers.
(ee) Specific Terms means the schedule that sets forth the specific terms applicable to a particular Service.
(ff) Tax means any income tax, withholding tax, VAT, business tax, sales tax, turnover tax, excise tax, tariff, levies, impost, deduction, charge, duties and any other similar liabilities that are imposed on any amount payable under this Agreement, including penalty interest and other additions to such liabilities imposed by any taxing authority in any jurisdiction, except for liabilities imposed by reason of PCCW Global carrying on a business in a jurisdiction or being incorporated in that jurisdiction.
(gg) Third Party Supplier means a service provider, including an Affiliate, from whom PCCW Global procures services or service components in order to provide the Services to the Customer.
1.2 The Specific Terms and Order Form(s) form a part of this Agreement and any reference to the Agreement includes the Specific Terms and Order Form. In the event of a conflict among these General Terms and Conditions, the Specific Terms, and the Order Form, the conflict will be resolved in the following order of precedence: the Order Form, the Specific Terms relevant to that Service and these General Terms and Conditions.
1.3 The Agreement shall be deemed drafted equally by both Parties. Its language shall be construed as a whole and according to its fair meaning. The headings in this Agreement are only for convenience and are not intended to affect construction or interpretation. Any references to articles, clauses or paragraphs are to those parts of this Agreement, unless the context clearly indicates to the contrary. Words importing the singular shall include the plural and vice versa and words importing a gender include every gender.
2. Services and Scope of the Agreement
2.1 PCCW Global shall provide the Services with the care and skill of a competent telecommunications provider, in accordance with the terms of the Agreement and any and all Applicable Laws up to the Service Demarcation Point. In respect of any jurisdiction in which PCCW Global is not itself permitted by Applicable Law to provide the Services, PCCW Global shall arrange for the provision of any such Services by a licensed Third Party Supplier, provided that, PCCW Global shall remain liable to the Customer for the performance of the Services and the conduct of any such Third Party Supplier.
2.2 All new Services shall be subject to acceptance by Customer within three (3) days of the date of PCCW Global’s SCN (“Acceptance Period”). Prior to the end of the Acceptance Period, Customer shall provide PCCW Global with a written notice of any deficiencies in the Service, as measured against the applicable Service Levels set out in the Specific Terms. If Customer provides written notice of deficiencies pursuant to this clause 2.2, PCCW Global shall remedy such deficiencies and re-submit to the Customer a notice for service commencement, at which point the Customer shall once again have three (3) days to test and provide PCCW Global with a written notice of any deficiencies, pursuant to this paragraph or the Service shall be deemed accepted. In the absence of such written notice, the Service shall be deemed accepted and the Service Commencement Date shall be as stated in the SCN. There shall not be an Acceptance Period for renewal Services, and in the absence of an SCN for renewal Services, the Service Commencement Date for renewal Services shall be the date PCCW Global commences billing under the applicable renewal Order Form. PCCW Global shall be entitled to commence billing for Services as of the corresponding Service Commencement Date; provided however that if an SCN applicable to the Service provides a Billing Date later than the Service Commencement Date, billing shall begin on the Billing Date. No failure of Customer to provide information, other facilities, or third party services necessary to permit Customer to utilize the Services shall operate as a defense against non-payment.
2.3 These General Terms and Conditions shall govern any and all Order Forms entered into between the Parties, between a Party and the other Party’s Affiliate, or between the Affiliates of the Parties. In each such case, unless otherwise agreed in writing, neither PCCW Global nor Customer shall be liable for the obligations undertaken by an Affiliate. In the case of Customer Affiliates, where Customer has not guaranteed the performance of its Affiliate, PCCW Global or its Affiliate shall be entitled to apply credit guidelines to such Customer Affiliate and impose credit terms appropriate to that Customer Affiliate. With respect to an Order Form executed by a Customer Affiliate, all references to “Customer” in this Agreement will mean such Customer Affiliate, and with respect to an Order Form executed by a PCCW Global Affiliate, all references to “PCCW Global” in this Agreement will mean such Affiliate.
3. Term
3.1 These General Terms and Conditions shall come into force on the Effective Date and shall continue until terminated by either Party on not less than thirty (30) days prior written notice to the other Party. Except as permitted by Article 13 below, the termination of this Agreement shall not operate to terminate any existing, accepted Order Form and the terms of this Agreement shall continue to apply to each Order Form until the Order Form terminates or expires.
3.2 An Order Form shall become effective and binding on the Parties on the date it is accepted by PCCW Global. Unless otherwise specified in the Specific Terms or the relevant Order Form, the Minimum Contract Period for each Service shall remain in effect for twelve (12) months after the applicable Service Commencement Date. Upon expiration of the Minimum Contract Period, the Service term shall automatically renew on a month-to-month basis unless and until terminated by either Party in accordance with Article 13. Notwithstanding the foregoing, in the event a Party terminates a Service without cause, PCCW Global will continue to provide and Customer shall be obligated to pay for such Services through the end of the calendar month in which the notice period expires.
4. Customer’s Obligations
The Customer shall, at its own expense, provide the proper facilities and resources for installation, maintenance, and operation of the Services, including, without limitation, any Customer Equipment necessary to permit Customer to make use of the Services, any services, including, without limitation, local loops or cross-connects not included in the Service being provided by PCCW Global (as set forth in the Specific Terms or Order Form), obtaining and maintaining any required licences or permits, and ensuring that the Services are used, whether by Customer or its end users, in accordance with the terms of this Agreement and any Applicable Law. In addition, Customer shall, at its own expense, be responsible to connect to PCCW Global at the Service Demarcation Point.
5. Service Numbers
In the event PCCW Global assigns Customer Service Numbers pursuant to an Order Form, the following terms and conditions apply:
5.1 Except as may be required by Applicable Law, the Customer acknowledges that the Service Numbers do not belong to the Customer and the Customer accepts that it shall acquire no rights whatsoever in any Service Numbers;
5.2 The Customer acknowledges that PCCW Global may withdraw or change any Service Number upon reasonable notice being provided to the Customer;
5.3 Service Numbers assigned to the Customer shall be personal to the Customer and the Customer shall be responsible for using them in accordance with the rules and instructions given to it by PCCW Global from time to time;
5.4 The Customer shall immediately notify PCCW Global of any unauthorized use of any Service Number and PCCW Global shall immediately discontinue access to the affected Services and allocate a new Service Number;
5.5 The Customer shall be responsible for all Charges incurred through the use of the Services (whether authorized or otherwise) when access to the Services is obtained through the use of any of the Service Numbers assigned by PCCW Global to the Customer; and
5.6 The Customer shall be responsible for keeping any Network User Identity confidential.
6. Charges and Taxes
6.1 Calculation of Charges and Invoicing
(a) Fixed or recurring Charges are billed monthly in advance and variable (usage-based) Charges shall be billed monthly in arrears. One-time Charges and installation Charges will be invoiced on acceptance of the relevant Order Form.
(b) Customer is responsible for all Charges incurred through the use of the Services provided hereunder. Subject to the dispute procedures set forth herein, PCCW Global’s usage records will be prima facie evidence of the usage of a Service and the Charges payable by the Customer.
(c) If the calculation for any amount or Charges under this Agreement commences on a date other than the first day of a month or terminates on a date other than the last day of a month, the relevant amount or Charges due for the partial month shall be calculated pro-rata, on the basis of the actual number of days in the relevant month.
(d) Where PCCW Global incurs costs associated with Customer-initiated delays in the FOC Date after acceptance of the Order Form, Customer shall be liable for any such costs.
(e) Where Customer requests PCCW Global to dispatch personnel to Customer’s Premises in connection with a Service failure, Customer shall be liable for the costs of such service call where the failure is found to be in the Customer Equipment, or any other equipment, software, services, or facility not provided by PCCW Global.
6.2 Variation of Charges
The Charges set forth in the Order Form are fixed during the Minimum Contract Period, provided that, PCCW Global may pass through to Customer, without mark up, any additional fees or costs or surcharges resulting from a change in regulation, Tax, or otherwise imposed by any regulatory or governmental body on the Services.
6.3 Payment
(a) Subject to paragraph (b) below, the Customer must pay invoices for one-time Charges and installation Charges prior to the delivery of Service and each invoice for recurring and variable Charges within thirty (30) days (“Credit Period”) of the date of the invoice, unless the Order Form provides a different Credit Period (“Due Date”). Payment shall be made in the currency set forth in the Order Form to the address provided in the related invoice without set off, deduction, or counterclaim for any amount (including, without limitation, Taxes) in the manner agreed by the Parties. Notwithstanding the foregoing, in the event Customer pays the Charges in a currency other than the currency indicated on the invoice, Customer shall be responsible for any currency exchange loss suffered by PCCW Global so that PCCW Global receives an amount equal to the Charges invoiced.
(b) Customer must present any disputes regarding the correctness of an invoice within thirty (30) days of the date of the relevant invoice or such dispute shall be deemed waived. Customer shall provide PCCW Global with documentation that demonstrates the improper charge. To the extent that Customer has raised a bona fide dispute within the agreed period for raising disputes, Customer may withhold the disputed portion, provided the remaining payment has been received by PCCW Global by the Due Date. PCCW Global and the Customer shall work together in good faith to resolve any bona fide invoice enquiry or dispute notified to PCCW Global under this clause 6.3(b) in accordance with Article 15.
(c) If any payment due by the Customer to PCCW Global that has not been disputed pursuant to clause 6.3(b) is not received by the Due Date then PCCW Global shall be entitled, in addition to any other rights it may have under the terms of this Agreement or at law, to (i) charge and Customer shall be liable for: daily interest on outstanding amounts, at the Interest Rate from the Due Date until paid in full, and any and all costs of collection incurred by PCCW Global, including, without limitation, legal costs, as a result of Customer’s failure to pay; and (ii) offset such Charges, costs and interest against any amounts that PCCW Global or its Affiliates owe to Customer or its Affiliates pursuant to any other agreement between the Parties.
6.4 Taxes
The Charges are exclusive of any Taxes. The Customer agrees to pay all Taxes which may be imposed by any taxing authority in relation to any amount payable under this Agreement whether existing on the Effective Date or coming into effect at any later time. If the Customer is required by Applicable Law to deduct any Taxes or make a withholding from any amount payable under this Agreement then, notwithstanding anything to the contrary contained in this Agreement, the Customer shall ensure that the deduction or withholding does not exceed the minimum amount required by law and the gross amount payable by the Customer to PCCW Global shall be increased so that, after any such deduction or withholding for Taxes, PCCW Global receives an amount equal to the sum it would have received had no such deduction or withholding been made, and 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 PCCW Global acceptable evidence of such payments. In the event Customer is exempt from payment of certain Taxes, it shall provide to PCCW Global a copy of a valid tax exemption certificate or other equivalent information acceptable to the relevant taxing authority. In such instance, PCCW Global shall not charge such exempt Taxes, provided such certification is valid and current.
7. Security
7.1 Customer shall be subject to PCCW Global’s initial and on-going credit policies and procedures. PCCW Global reserves the right to withhold initiation or full implementation of any new Services pending satisfactory credit review and approval thereof, which may be conditioned upon terms specified, including, but not limited to, security for payments due hereunder in the form of a cash deposit, guarantee or irrevocable letter of credit (“Security”). In addition, in the event that
(a) Customer experiences a material, adverse change to its financial position that, in PCCW Global’s reasonable commercial judgment, impacts Customer’s creditworthiness;
(b) Customer’s actual usage exceeds the estimated usage on which any initial or existing credit amount was determined, or
(c) PCCW Global is required to issue a notice to Customer under clause 13.3(a) below three (3) times in any twelve (12) month period, then PCCW Global reserves the right to require the Customer to increase the Security. If Customer fails to provide the Security within ten (10) days of PCCW Global’s written demand, then PCCW Global may suspend Services without liability to Customer of any kind until such Security is received.
7.2 The Customer authorizes PCCW Global, without prejudice to any other rights and remedies available to PCCW Global, to apply any Security against any past due, undisputed, outstanding Charges. The existence of any type of Security does not affect any right of PCCW Global to suspend, cancel or terminate this Agreement for non-payment by the Customer of the Charges.
7.3 Any Security in the form of a deposit or other advance payment shall, after termination of this Agreement, be refunded to the Customer without any interest and less any amounts deducted by PCCW Global in accordance with clause 7.2.
8. Equipment
8.1 Service Equipment
(a) All ownership interest in Service Equipment shall at all times remain with PCCW Global or a Third Party Supplier, as the case may be. Except where resulting from the negligence or wilful misconduct of PCCW Global or its subcontractors, Customer shall be liable for any damage to Service Equipment installed on Customer’s Premises, including, without limitation, losses due to vandalism or theft. Customer shall keep the Service Equipment free and clear of any and all liens and shall not use the Service Equipment for any purpose or in any manner other than as approved by PCCW Global. Any Service Equipment in the care and custody of Customer shall be returned to PCCW Global in good working order, reasonable wear and tear excepted, within thirty (30) days after termination of this Agreement or the Service to which the Service Equipment relates.
(b) The Customer shall ensure that such Service Equipment is not removed, relocated, modified, interfered with, or attached to other equipment without the prior written authorization of PCCW Global or as expressly authorized by the terms of this Agreement.
(c) PCCW Global shall be responsible to repair or replace, at its sole discretion and expense, any faulty or non-operational Service Equipment located at the Customer Premises, except where the cause of the failure of the Service Equipment is due to Customer’s non-compliance with clauses 8.1(a) or 8.1(b) above.
(d) The Customer is responsible for and will bear the costs associated with (i) customs clearance; (ii) any Taxes or duties of whatever nature incurred in relation to the importation of Service Equipment into Customer’s Premises; and (iii) Taxes or duties associated with the presence of Service Equipment at Customer’s Premises.
8.2 Customer Equipment
(a) Where PCCW Global has sold Customer equipment to be used in connection with the provision of Services hereunder, or where PCCW Global has otherwise notified Customer in writing that Customer must obtain certain equipment to facilitate the provision of the Services, then such equipment will be deemed to be Customer Equipment. Customer shall ensure that Customer Equipment is wholly dedicated to the provision of the Services and is configured as required by PCCW Global from time to time. Where required by PCCW Global, Customer will also ensure that PCCW Global can dial remotely into or gain access to such Customer Equipment to ensure the proper provision of the Services. Save as otherwise set out in this Agreement, Customer will be expected to maintain/service Customer Equipment in accordance with the manufacturer’s instructions and any other reasonable instructions from PCCW Global, and shall ensure that PCCW Global is appropriately licensed to use such Customer Equipment as reasonably anticipated by this Section.
(b) Save as otherwise expressly set out in an Order Form, PCCW Global is not responsible for the installation, maintenance, compatibility or performance of any Customer Equipment.
(c) If any Customer Equipment impairs a Service, the Customer remains liable for the Charges
(d) If any Customer Equipment is likely to cause hazard or an impairment of a Service, the Customer shall promptly eliminate such likelihood at PCCW Global’s request.
(e) If the Customer provides any router to interface with a Service, the Customer must cooperate with PCCW Global in configuring and managing such router.
8.3 Sale of Equipment
Customer acknowledges that PCCW Global is not an equipment manufacturer and where it offers to procure equipment on the Customer’s behalf, PCCW Global’s sole liability with respect thereto shall be to pass through to Customer any rights and remedies offered by the manufacturer.
9. Customer Premises
9.1 PCCW Global’s Access Rights
Where PCCW Global has placed Service Equipment on the Customer’s Premises, the Customer shall ensure that PCCW Global and its representatives and agents have access to the Premises at all times in the case of emergency and otherwise at reasonable times to be agreed with the Customer to carry out any of its obligations with respect to the Service Equipment, subject always to Customer’s reasonable security requirements. Notwithstanding the foregoing, where Customer delays, restricts, or otherwise denies PCCW Global reasonable access to the Premises, PCCW Global shall not be liable for, and Customer shall not be entitled to, service credits or other liability with respect to any interruption of Service that, but for such delay, restriction, or denial, might have been avoided.
9.2 Environment Specifications
In the event that Customer is required to house Service Equipment at its Premises, Customer shall be responsible for providing a suitable and secure environment, in compliance with the equipment manufacturer requirements, free from environmental hazards for any such Service Equipment. Customer shall be responsible for external surveillance, appropriate and redundant power supply, and fire, flood, lightning and theft protection.
10. Indemnity
10.1 Indemnification.
Each Party (the “Indemnifying Party”) shall indemnify and hold harmless the other Party (the “Indemnified Party”) from and against any and all claims by third parties arising out of or caused by the gross negligence or wilful misconduct of the Indemnifying Party. In addition and notwithstanding anything contained herein to the contrary, Customer shall indemnify and hold PCCW Global harmless from and against any and all claims made against PCCW Global by third parties as a result of Customer’s use of the Services.
10.2 Intellectual Property Indemnification
(a) PCCW Global agrees to defend or settle any claim against Customer and to indemnify and hold Customer harmless against any damages that a court may award against Customer, in any suit that alleges that a Service infringes the Intellectual Property Rights of any third party in the country where the Service is provided by PCCW Global to Customer, except where the claim or suit arises out of or results from Customer’s misuse of the Service, including, without limitation, defamatory or infringing content; Customer’s modification of the Service or its combination of the Service with services or products not supplied by PCCW Global.
(b) PCCW Global may, at its option, either procure the right for Customer to continue using the Service or replace or modify the alleged infringing Service so that the Service becomes non-infringing. If neither of the foregoing alternatives is, in PCCW Global’s reasonable opinion, commercially feasible, then PCCW Global may terminate the affected Service without liability other than as stated in clause 10.2(a), provided that, PCCW Global shall refund to Customer any prepaid Charges not applied to its use of the Services as of the date of termination. In the event that PCCW Global is unable to provide the Service as a result of a claim under this clause 10.2, then PCCW Global will cooperate with Customer to transition the Services to a new provider.
10.3 Other Obligations of the Indemnified Party
The obligations of the Indemnifying Party under this Article 10 are conditioned on the Indemnified Party:
(a) Providing prompt written notice of any actual or threatened claim or suit for which indemnification may be sought, provided that, the failure to do so shall have no effect on the Indemnifying Party’s obligations to the extent the Indemnifying Party is not prejudiced by any delay;
(b) Ceding sole control of the defence and/or settlement of any claim to the Indemnifying Party, provided that, the Indemnified Party may participate in the defense or settlement with its own counsel and at its sole expense; and
(c) Providing all reasonable cooperation and assistance to the Indemnifying Party, at the expense of the Indemnifying Party.
11. Liability and Disclaimer of Warranties
11.1 Limitation of Liability
(a) Nothing in this Agreement shall be construed as limiting or restricting a Party’s liability for death, or personal injury resulting from its negligence, breach of confidentiality, fraud, or the obligation to indemnify the other Party hereunder.
(b) The Customer acknowledges that the Services may not be fault free. Where in relation to any Service the Specific Terms relevant to that Service provides for a system of rebates or credits against Charges, such rebates or credits shall be the exclusive remedy of Customer in respect of such failure.
(c) Subject to paragraph (a) above, in no event shall a Party be liable to the other Party for any Consequential Loss, regardless of the cause of action and whether or not such Consequential Loss was foreseeable, or a Party was advised of the possibility of such Consequential Loss.
(d) Subject to paragraph (a) above, a Party’s liability to the other Party for any and all damages arising out of a Party’s breach of this Agreement, regardless of the cause of action, shall be limited to direct, proven damages and shall not exceed the amount payable by Customer to PCCW Global for the Service(s) to which the damages relate during the twelve (12) month period immediately preceding the occurrence that led to or caused the damages.
(e) In no event shall PCCW Global’s Third Party Suppliers be liable to Customer for any Loss arising out of the provision of Services hereunder and Customer hereby waives the right to make a claim against any such supplier, except to the extent that Customer’s cause of action is unrelated to the provision of Services hereunder.
(f) Each of the provisions of this clause 11.1 is to be construed as a separate provision applying and surviving even if for any reason one or more of the other of the said provisions is held inapplicable or unreasonable in any circumstance. The provisions of this clause 11.1 shall apply regardless of the nature of the claim asserted; whether in contract, tort, statutory duty, strict liability or otherwise.
11.2 Disclaimer of Warranties
CONDITIONS AND WARRANTIES IMPLIED BY CUSTOM, THE GENERAL LAW, STATUTE OR ANY APPLICABLE LAW, INCLUDING, WITHOUT LIMITATION, THE WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, ARE EXCLUDED FROM THIS AGREEMENT.
12. Suspension of Service
12.1 Maintenance
PCCW Global may suspend Services during the maintenance or upgrade of its Network. In the event of routine, planned maintenance, PCCW Global will provide Customer with reasonable prior written notice. For emergency maintenance, PCCW Global will provide as much notice as is practical under the circumstances. In all cases, PCCW Global will work with Customer to minimize disruptions to the Service.
12.2 Network Security
PCCW Global may suspend Service(s) where, in PCCW Global’s sole discretion, Customer’s use of such Service results, or is likely to result in imminent risk to the integrity or operation of PCCW Global’s Network or that of its Third Party Suppliers or other end users. In addition, PCCW Global may suspend one or more Services where use of the Services appears to be fraudulent or otherwise in violation of this Agreement or Applicable Law. In all such cases, PCCW Global will provide Customer with as much notice as is practical under the circumstances and shall cooperate with Customer to suspend only so much of the Service(s) as may be necessary to remove the risk and only for so long as the risk remains.
13. Termination and Suspension
13.1 Termination by either PCCW Global or the Customer
Either Party may terminate this Agreement as a whole, including without limitation all executed Order Forms, at any time with immediate effect on the giving of written notice to the other Party if the other Party becomes or appears likely to become insolvent or bankrupt, subject to a winding up proceeding, has a receiver appointed or has any proceeding seeking such an appointment filed against it that is not dismissed within thirty (30) days thereafter, is dissolved or in the process of dissolution, makes any arrangement for the benefit of creditors, or initiates or becomes or appears likely to become subject to any other form of an insolvency proceeding.
13.2 Termination by the Customer
The Customer may terminate one or more Services:
(a) Subject to clause 13.4, without cause, at any time after PCCW Global’s acceptance of an Order Form, by giving PCCW Global not less than sixty (60) days prior written notice; or
(b) If PCCW Global is in breach of any material obligation hereunder with respect to such Service(s) and PCCW Global fails to remedy such breach within thirty (30) days after receiving written notice requiring it to do so.
13.3 Termination or Suspension by PCCW Global
PCCW Global shall have the right to terminate or suspend, in its sole discretion, one or more Services in any of the following events:
(a) Subject to clause 6.3(b), any Charges or sums payable remain unpaid more than five (5) days after PCCW Global’s written notice to Customer that such Charges are past due;
(b) Without cause after the expiration of the Minimum Contract Period by giving the Customer sixty (60) days prior written notice;
(c) If the Customer is in breach of any material obligation hereunder other than the obligation to pay Charges when due and fails to remedy such breach within thirty (30) days after receiving written notice requiring it to do so;
(d) PCCW Global determines that it is against public policy to continue providing such Services, provided that PCCW Global shall give Customer as much advance written notice as is practicable under the circumstances; or
(e) PCCW Global is prohibited from supplying a Service under any Applicable Law, provided that PCCW Global shall give Customer as much advance notice as is practicable under the circumstances.
13.4 Cancellation Charge
If Customer terminates an accepted Order Form after it has been accepted by PCCW Global but prior to the end of the Minimum Contract Period, or if PCCW Global terminates an Order Form during the Minimum Contract Period due to a Customer default or Clause 13.1, then, in addition to all accrued Charges up to the date of termination, Customer shall be liable for a Cancellation Charge equal to the sum of: (i) 100% of the Charges that would have been payable by the Customer if the Customer had continued to receive the Service from the date of termination until the expiry of the Minimum Contract Period and (ii) the value of any price discounts, credits, or Charges waived by PCCW Global at the time of acceptance of the Order Form. The Parties agree that the Cancellation Charge is an agreed reasonable pre-estimate of the anticipated losses suffered by PCCW Global if a Service is terminated before the expiry of the Minimum Contract Period.
13.5 Consequences of Termination
Upon the date of termination of an Agreement or a Service, as the case may be, all applicable licenses, rights and privileges granted to the Customer under this Agreement shall cease and all Charges for the Services up to and including the date of termination and all other amounts owing by Customer shall be immediately due and payable.
13.6 Survival
(a) Termination of this Agreement will not extinguish or otherwise affect any rights of any Party against the other, which accrued before the date of termination of this Agreement.
(b) To the extent possible, Articles 6 (Charges and Taxes), 8 (Equipment), 10 (Indemnity), 11 (Liability and Disclaimer of Warranties), 13 (Termination and Suspension), 14 (Confidentiality and Intellectual Property Rights) and any other clause of the Agreement, which by its nature is intended to survive termination of this Agreement, will survive termination of this Agreement.
14. Confidentiality and Intellectual Property Rights
14.1 Confidentiality
(a) Each Party agrees that any and all written and/or oral information of any kind relating to this Agreement or disclosed by one Party (the “disclosing Party”) to the other Party (the “receiving Party”) pursuant to this Agreement, prior to it, or in the course of performance of it, whether or not such information is identified as being confidential at the time of disclosure (collectively, “Confidential Information”), shall remain the property of the disclosing Party, shall be treated as confidential by the receiving Party and shall be used solely for the purpose for which it is supplied, subject to the remaining provisions of this clause 14.1. The obligations of the Parties with respect to the non-disclosure and non-use of such Confidential Information shall not apply in relation to information already in the public domain or which becomes so through no fault of the receiving Party or is approved for release by prior written authorization of the disclosing Party.
(b) Save as otherwise expressly permitted by this clause 14.1, the receiving Party shall not divulge Confidential Information other than to those employees (including employees of Affiliates) and professional advisors, who are directly involved in the performance of this Agreement, and shall ensure that such persons are aware of and comply with these obligations as to confidentiality.
(c) The receiving Party may disclose Confidential Information pursuant to judicial or governmental request, requirement or order, where lawfully required by such authorized institutions. The receiving Party shall, however, to the extent permissible, give the disclosing Party sufficient prior notice to contest such request, requirement or order and disclose strictly only that part of the Confidential Information that has been requested.
(d) Upon the request of the disclosing Party or upon termination of the Agreement, the receiving Party shall return or destroy the Confidential Information provided to the receiving Party. Subject to the provisions in this clause 14.1, these obligations of confidentiality shall continue for a period of two (2) years after termination of this Agreement.
14.2 Intellectual Property Rights
(a) The Customer agrees and acknowledges that nothing in this Agreement:
(i) Assigns any Intellectual Property Right of PCCW Global or any third party to the Customer; or
(ii) Grants any license to the Customer in respect of any Intellectual Property Right of PCCW Global or any third party, except for any license that PCCW Global may grant pursuant to clause 14.2(b).
(b) If PCCW Global permits the Customer to use any software as part of a Service under this Agreement:
(i) PCCW Global grants to the Customer a non-exclusive, non-sub-licensable and non-transferable license to store, run or use such software for the purposes only of using a Service;
(ii) The Customer must use such software in accordance with this Agreement and any additional terms and conditions that PCCW Global may notify to the Customer; and
(iii) To the maximum extent that Applicable Law permits, the Customer must not alter, modify, adapt, translate, decompile, disassemble or reverse engineer or commercially exploit any such software.
(c) Neither Party shall do any act or permit any act to be done which is an infringement of any Intellectual Property Rights of any other person in the performance of its duties and obligations under this Agreement.
15. Dispute Resolution
The Parties will work together in good faith to amicably settle any dispute or difference that arises between the Parties in respect of any aspect of this Agreement promptly by negotiations between management representatives of the Parties with authority to settle the dispute. In the event that the dispute or difference has not been settled within thirty (30) days of the date that a Party receives written notification of the dispute or difference, then either Party may elect instead to rely on its rights at law, including the right to institute court proceedings. Notwithstanding the foregoing, the dispute resolution procedure described in this Article 15 does not prevent a Party from seeking urgent interlocutory relief.
16. Governing Law and Jurisdiction; Waiver of Immunity
(a) This Agreement shall be governed in all respects by the laws of jurisdiction where the PCCW Global entity named in the Order Form is incorporated and the Parties submit themselves to the exclusive jurisdiction of the courts established in that jurisdiction in the event of any dispute.
(b) The Parties acknowledge that this Agreement is commercial in nature and each Party, to the extent applicable, expressly and irrevocably waives any claim or right which it may have to immunity, including, without limitation, sovereign immunity, act of state, or otherwise, for itself or with respect to any of its assets in connection with any proceeding to enforce this Agreement.
17. General Provisions
17.1 Assignment. Neither Party may assign any or all of its rights or obligations under this Agreement, except with the prior written consent of the other Party, which consent shall not be unreasonably withheld, provided that, PCCW Global may assign this Agreement, in whole or in part, to any Affiliate, to its successor in the event of a reorganization or merger, or to any purchaser of all, or substantially all, of the assets to which this Agreement relates.
17.2 Export Control. The Parties acknowledge that certain equipment, encryption products, software, and Confidential Information provided under this Agreement may be subject to export laws and regulations of the United States, the European Union and other countries (cumulatively, “Export Laws”). Each Party agrees that it will not use, distribute, export, re-export, transfer, or transmit such equipment, encryption products, software, or Confidential Information (even if incorporated into other items) in violation of applicable Export Laws.
17.3 Force Majeure. Except with respect to Customer’s obligation to pay Charges, neither Party shall be liable for any Loss resulting from delay or failure to perform this Agreement, either in whole or in part, where any such delay or failure is due to a Force Majeure Event.
17.4 Notice. Any notice required to be given hereunder shall be sufficiently given if sent by hand, facsimile transmission, or post addressed to addresses provided in the Order Form, provided that a copy of all legal notices to PCCW Global should also be sent to facsimile number (703) 621-1621. Any such notice shall be deemed to have been received: (a) if by hand delivery, when it is delivered; (b) if by mail, three (3) days after posting or seven (7) days after posting if posted to or from a place outside the recipient’s home country; and (c) if by facsimile, at time of dispatch if the sender receives a transmission report which confirms that the facsimile was sent in its entirety to the facsimile number of the recipient.
17.5 Entire Understanding. This Agreement embodies the entire understanding between the Parties in relation to the Services and supersedes all prior agreements, representations and understandings of the Parties, written or oral, with respect to such Services. In entering into this Agreement the Parties do not rely on any representations or warranties in relation to a Service except as expressly provided in this Agreement. This Agreement may only be amended by a signed written agreement between the Parties.
17.6 Non-Waiver. No failure, or delay on the part of the Parties to exercise any right, power or remedy under this Agreement shall operate as a waiver of that power or right unless expressed in writing to be a waiver.
17.7 Severability. If any provisions of this Agreement shall be construed to be illegal or invalid, they shall not affect the legality, validity and enforcement of the other provisions of this Agreement. The illegal or invalid provision shall be deleted from this Agreement and no longer incorporated in this Agreement but all other provisions of this Agreement shall continue to have full force and effect.
17.8 Third Party Beneficiaries. Nothing in this Agreement expressly or impliedly provides any third party (other than the Parties’ permitted successors and assignees) with any remedy, claim, liability, reimbursement, cause of action or other right or privilege.
17.9 Relationship of the Parties. PCCW Global and Customer are independent contractors and nothing in this Agreement shall be deemed to constitute a partnership, agency or joint venture between the Parties.
17.10 Counterparts. This Agreement, or any amendment to this Agreement, may be executed in two or more counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument. In the event that any signature is delivered by facsimile transmission or by e-mail delivery of a “.pdf” format data file, such signature shall create a valid and binding obligation of the party executing (or on whose behalf such signature is executed) with the same force and effect as if such facsimile or “.pdf” signature page were an original thereof.
17.11 Language. If this Agreement is executed by the Parties in more than one language, the English language version shall control. The annexes, schedules, appendices or other attachments to this Agreement are presented in English only. The failure of PCCW Global to provide translations of any such annexes, schedules, appendices or other attachments shall not be deemed a breach of this Agreement nor shall it form the basis of a bona fide dispute by the Customer.
