Skip to Content
Why is this page text-only?
(b) Where Service Levels apply to a Service, PCCW Global shall use its reasonable endeavors to provide that Service in accordance with those Service Levels. If PCCW Global fails to meet those Service Levels at any time, the Customer's sole and exclusive remedy in respect of that failure shall be as provided in the Service Levels.
(c) In managing its Network, and subject to clause (h) below, PCCW Global will determine the most appropriate means of providing a Service including, without limitation, the method, technology and route of delivery and may vary the method, technology and route of delivery at any time.
(d) In respect of the provision of the Services in any particular geographic area ("Territory") in which PCCW Global is not itself permitted by the Applicable Laws to provide the Services, the Customer hereby agrees that PCCW Global shall arrange for the provision of these Services, either on its own behalf or as the Customer's agent, from an Affiliate or Operator nominated by PCCW Global that is authorized to provide telecommunication services in that Territory. Prior to entering into any contract with an Operator pursuant to this paragraph, PCCW Global shall obtain Customer's written consent to any additional terms or conditions imposed by the Operator. PCCW Global shall have no liability to Customer for delays in accepting an Order Form or provisioning a Service resulting from Customer delay in consenting to any such Operator terms and conditions. Customer may elect to reject Operator terms relevant to any Service or service component, and upon notifying PCCW Global of its election, the Order Form to which those Operator services relate shall be deemed withdrawn by Customer.
(e) Any satellite services ordered by Customer hereunder are provided, and may be invoiced directly to Customer, by PCCW Global (HK) Limited, a PCCW Global Affiliate pursuant to these General Terms and Conditions and the applicable Specific Terms.
(f) To ensure the security of its Network or in compliance with Applicable Law, the Customer acknowledges that PCCW Global may monitor Customer's use of a Service or intercept a Service, but only to the extent so required and for the purposes permitted hereunder.
(g) The Customer acknowledges that the Services may not be fault free. If any faults arise in the operation of a Service, the Customer shall immediately notify PCCW Global. In the event of a fault, PCCW Global shall use its reasonable endeavors to remedy the fault as soon as practicable.
(h) The Customer acknowledges that, with respect to accepted Orders, PCCW Global may vary or modify the Service description for any Service at any time, provided that such variation or modification does not result in an adverse impact on the features, price, or functionality of the Service as agreed by the Parties at the time of Order acceptance. With respect to future Orders, PCCW Global may vary or modify the Specific Terms for any Service at any time, upon prior written notice and such amended Specific Terms shall apply to any new Orders accepted by PCCW Global after the expiry of the notice period.
(i) All Services shall be subject to acceptance by Customer within three (3) days of the date of PCCW Global's written notice of service commencement. Within said three (3) day period, Customer shall provide PCCW Global with a written notice of any deficiencies in the Service, as measured against the applicable Service Levels or other functional specifications provided by PCCW Global to Customer with respect to such Service. In the absence of such written notice, the Service shall be deemed accepted and the Service Commencement Date shall be the date of PCCW Global's notice. PCCW Global shall be entitled to commence billing for the Service as of the Service Commencement Date and 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.
(j) Where available, Customer may submit an electronic Order Form for Services. Customer acknowledges and agrees that upon acceptance by PCCW Global of any electronic Order Form submitted by Customer, such Order Form shall constitute a legally binding commitment, whether or not actually signed by either Party.
(b) If PCCW Global is unable to supply a Service by the Service Provision Guarantee Date, PCCW Global will notify the Customer as soon as practicable of the cause of the delay and, subject to any service levels associated with such delay, the Parties will agree a revised Service Provision Guarantee Date.
(c) Unless otherwise specified in the Specific Terms or the relevant Order Form, the initial Minimum Commitment Period for each Service shall be twelve (12) months. Upon expiration of the Minimum Commitment Period, the Service term shall automatically renew on a month-to-month basis unless otherwise agreed by the Parties or either Party provides notice of its intention to terminate in accordance with the provisions of Clauses 13.2(a) or 13.3(b).
(b) The Customer acknowledges that PCCW Global may withdraw or change any Service Number upon reasonable notice being provided to the Customer.
(c) 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.
(d) 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.
(e) The Customer shall be responsible for all Charges incurred through 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.
(f) The Customer shall be responsible for keeping any Network User Identity, which has been assigned to the Customer, confidential.
(i) in accordance with the Order Form;
(ii) from the Service Commencement Date; and
(iii) in accordance with this clause 6.
(b) The Customer agrees:
(i) to pay the Charges which PCCW Global's records attribute to the Customer for a Service;
(ii) that fixed Charges shall be billed monthly in advance and variable (usage-based) Charges shall be billed monthly in arrears;
(iii) that records held and call logging procedures adopted by PCCW Global will be prima facie evidence of the usage of a Service and the Charges payable by the Customer; and
(iv) that it is responsible for all Charges incurred between the time that the Customer makes a request for termination of a Service and the time of the actual termination of the Service.
(c) If the calculation for any amount or Charge 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 Charge due for the part month shall be calculated pro-rata, on the basis of the actual number of days in the relevant month.
(d) Where Customer requests a delay in the Service Provision Guarantee Date after acceptance of the Order Form, Customer shall nevertheless be liable to pay any Third Party Supplier charges incurred by PCCW Global as a result of such Customer-initiated delay.
(e) In the event that PCCW Global's staff and/or authorized agents have been called upon to attend to a fault at the Customer's Premises, Customer shall be liable to pay the costs of such service call at PCCW Global's then prevailing man-hour rates and/or the actual costs of any subcontractor or supplier dispatched on Customer's behalf, if the fault is not attributable to any of the Equipment or PCCW Global's telecommunications systems.
(b) PCCW Global reserves the right to:
(i) re-issue any bill if any error is subsequently discovered; and/or
(ii) bill the Customer through a billing agent or any of its Affiliates.
(c) PCCW Global may include Charges omitted from an earlier invoice in a subsequent invoice.
(d) Subject to paragraph (g) below, the Customer must pay each invoice:
(i) within thirty (30) days from the date of the invoice ("Due Date");
(ii) in the currency indicated on the invoice. If the Customer pays the Charges in a currency other than the currency indicated on the invoice and such payment results in any currency exchange lost to PCCW Global, such currency exchange lost shall be charged to the Customer as necessary so that PCCW Global receives an amount equal to the sum it would have received in accordance with the currency for Charges indicated on the invoice;
(iii) except as permitted by 6.3(g) below, without set off, counter claim or deduction for any amount (including, without limitation, Taxes); and
(iv) in the manner specified in the invoice, or if no such manner is specified, by cash, cheque, direct debt or other method permitted by PCCW Global.
(e) If a cheque or payment by direct debit is dishonored or cancelled, the Customer agrees to pay to PCCW Global any:
(i) resulting bank or other charges incurred by PCCW Global; and
(ii) a reasonable administration charge imposed by PCCW Global.
(f) If a payment due by the Customer to PCCW Global under this Agreement is not received by the Due Date PCCW Global shall be entitled to:
(i) charge daily interest on outstanding amounts, until payment in full is received by PCCW Global, at the rate of 1.5% per month from the Due Date until paid in full; and
(ii) charge any additional charges or expenses incurred by PCCW Global in recovering outstanding amounts due under this Agreement (including, without limitation, any legal costs and expenses, the cost of engaging a debt recovery agent, or the cost of instituting legal proceedings).
(g) All enquiries or disputes concerning any invoice must be notified to PCCW Global, along with any supporting documentation, on or before the Due Date. Nothing in this clause 6.3(g) shall relieve the Customer of its obligation to pay PCCW Global the undisputed portion of any invoice on or before 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 in accordance with this clause 6.3(g).
(h) PCCW Global may set off any amount owed by the Customer to PCCW Global against any amount owed by PCCW Global to the Customer under or in relation to this Agreement.
(b) 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.
(c) 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 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.
(d) If, pursuant to clause 2(d), PCCW Global obtains any facilities from an Operator, whether on its own behalf or as the agent of the Customer, and if PCCW Global is required to pay Taxes in relation to such facilities, the Customer agrees to pay all Taxes in relation to such facilities.
(b) In addition to the rights set forth in clause 7(a), in the event that (i) in PCCW Global's reasonable commercial judgment, Customer experiences a material, adverse change to its financial position, (ii) Customer's actual usage exceeds the estimated usage on which the initial Security amount was determined, or (iii) PCCW Global is required to issue a notice to Customer under Section 13.3(a) below hereunder three (3) times in any twelve (12) month period, then PCCW Global reserves the right to demand Security against due payment of all Charges. If Customer fails to provide Security within ten (10) days of PCCW Global's written demand, then PCCW Global may elect to suspend Services without liability to Customer of any kind until such Security is received.
(c) The Customer authorizes PCCW Global, without prejudice to any other rights and remedies available to PCCW Global, to deduct amounts from the Security, where applicable, for payment of any outstanding Charges and costs incurred by PCCW Global as a result of Customer's breach of its obligations under this Agreement.
(d) 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(c).
(e) 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.
(b) If any Customer Equipment or any Customer Software impairs a Service, the Customer remains liable for the Charges.
(c) 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.
(d) If the Customer provides any router to interface with a Service, the Customer must cooperate with PCCW Global in configuring and managing such router.
(b) PCCW Global may, at its option, either procure the right for Customer to continue using the Service or may replace or modify the alleged infringing Service so that the Service becomes non-infringing. If neither of the foregoing alternatives can, in PCCW Global's opinion, reasonably be achieved, then PCCW Global may terminate the affected Service without liability other than as stated in Section 10.2(a).
(b) the indemnified Party shall reasonably cooperate with the defense.
(b) 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) Except for Customer's obligation to pay any Charges due hereunder, including, without limitation, Cancellation Charges, each Party's liability to the other Party for any and all claims arising under this Agreement, whether in contract, tort (including negligence) or otherwise shall be limited to direct, proven damages and shall not exceed the amount paid by Customer to PCCW Global for the Service(s) to which the damages relate during the twelve month period immediately preceding the occurrence that led to or caused the damages.
(d) 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 has separately established a contract with said supplier for services or a Service component.
(b) 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.
Nothing in this Agreement excludes or restricts a Party's liability for death or personal injury resulting from the negligence of that Party.
(b) PCCW Global reasonably suspects that any activities not authorized under this Agreement have occurred or are occurring in relation to a Service, whether or not such activities are carried out by the Customer; or
(c) PCCW Global considers it necessary to carry out work for upgrading or maintaining the Equipment or the Network provided that, in the case of suspension for maintenance, PCCW Global gives the Customer the maximum advance notice practicable in the circumstances; or
(d) PCCW Global is ordered by any court, agency, or other government authority to cease providing the Service or the provision of a Service would cause PCCW Global to be in breach of any Applicable Law.
12.2 Suspension of any Services (a) Without prejudice to clause 11 (Liability), PCCW Global is not liable to the Customer or any third person for any Loss resulting from, or in connection, with the suspension of a Service under this clause 12.
(b) If PCCW Global elects to suspend the provision of one or more Services under clause 12.1(a) above, the Customer shall reimburse PCCW Global for all reasonable costs incurred by PCCW Global in implementing such suspension and in re-commencing provision of the Services.
(c) The exercise of any of PCCW Global's rights under this clause 12 is in addition to and not in lieu of any other remedy available to PCCW Global under this Agreement.
(b) if PCCW Global is in breach of any material obligation hereunder and fails to remedy such breach within thirty (30) days after receiving written notice requiring it to do so.
(b) without cause after the expiration of the Minimum Commitment Period by giving the Customer two (2) months 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 is named as a defendant or threatened with suit in any action or proceeding that is based on the use of the Service by, or conduct of, Customer or its end users;
(e) PCCW Global is prohibited from supplying a Service under any Applicable Law, provided that PCCW Global shall give Customer as much advance notice of any such termination as is practicable under the circumstances.
(b) 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 Commitment Period.
(b) Without prejudice to clause 11 (Liability), PCCW Global will not be liable to the Customer or to any third party for any Loss resulting from or in connection with termination of this Agreement under this clause 13.
(b) To the extent possible, clauses 6 (Charges and Taxes), 8 (Equipment), 10 (Indemnity), 11 (Liability), 13 (Termination), 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.
(b) The obligations under this clause 14 shall not apply, however, to any information which:
(i) was already in the public domain or which becomes so through no fault of the receiving Party; or
(ii) is approved for release by prior written authorization of the disclosing Party.
(c) Subject to the provisions in clause 14.1(b) these obligations of confidentiality shall continue for a period of three (3) years after termination of this Agreement.
(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.
(b) 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.
(c) The dispute resolution procedure described in this clause 15 does not prevent a Party seeking urgent interlocutory relief.
(d) English shall be the language of all proceedings.
(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.
(b) if a letter, three (3) days after posting or seven (7) days, if posted to or from a place outside the recipient's home country; and
(c) if a 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.
(b) 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.
(b) Each indemnity contained in this Agreement:
(i) is an additional, separate and independent obligation and no one indemnity limits the generality of another indemnity; and
(ii) survives the termination of this Agreement.
(b) Agreement means the General Terms and Conditions, Specific Terms for each Service and the Order Form relating to each Service.
(c) Affiliate means, in relation to an entity, any other entity which directly or indirectly controls, is controlled by, or is under common control with, such entity.
(d) Applicable Law means any applicable 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 in any jurisdiction where the Services are provided.
(e) Business Day means a day other than a Saturday, Sunday or public holiday in the country where the Services are performed.
(f) Cancellation Charge means the liquidated damages that may be payable by the Customer as described in 13.4.
(g) 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 payable by Customer in relation to a Service.
(h) 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.
(i) Customer Equipment means all hardware, software and consumables owned by the Customer or licensed or leased to the Customer by a third party and used in relation to a Service.
(j) Customer Software means any software provided by the Customer or licensed to the Customer by a third party.
(k) Defect means a defect, error or problem in a Service or Equipment.
(l) Effective Date means the date set forth above, or, if no date is set forth, then the date of the first Customer Order hereunder.
(m) Equipment means the equipment (including any software contained in that equipment) provided or used by PCCW Global to make available a Service to the Customer that may be installed at the Premises, including any equipment licensed or leased to the Customer by PCCW Global under this Agreement, but excluding any Customer Equipment.
(n) Force Majeure Event means an event outside the reasonable control of PCCW Global, 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 telecommunication network outage or degradation.
(o) Global Service Customer Report means the Customer reporting product, which provides the Customer with reports on its use of the Service.
(p) 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.
(q) Loss includes any loss, costs, damages, expense, liability and charge incurred by a Party, including Consequential Loss.
(r) Minimum Commitment 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.
(s) Network means the telecommunications network owned or operated by PCCW Global 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.
(t) Network User Identity means an identity number, assigned by PCCW Global to the Customer that allows the Customer to use a Service.
(u) Operator means a provider of telecommunications services as described in clause 2(d).
(v) 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.
(w) Premises means the premises indicated in an Order Form.
(x) Schedule means a schedule to this Agreement.
(y) Service means a telecommunications service supplied by PCCW Global to the Customer under this Agreement pursuant to an Order Form which service is more fully described in the Specific Terms.
(z) Service Commencement Date means, with respect to a Service, the date on which PCCW Global delivers the Service to Customer.
(aa) Service Levels means, where applicable to a Service, the committed levels of service in accordance with which PCCW Global will use its reasonable endeavors to provide that Service, as specified in the Specific Terms and, unless otherwise set forth in the applicable Service Level, excludes services procured by Third Party Suppliers.
(bb) Service Literature means any brochure, tariff schedule, customer guide, code of practice, device description, instructions or manual issued by PCCW Global from time to time in connection with the provision of a Service.
(cc) Service Management Centre means the service management centre operated by PCCW Global which provides a helpdesk facility for the Customer in respect of the Service and by which the Customer may make general enquiries regarding a Service, fault management, planned outages for a Service, service ordering, service provisioning or making billing queries.
(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) Service Provision Guarantee Date means the date on which the Customer is intended to be able to use the Service and which is specified on the relevant Order Form and confirmed in writing by PCCW Global after the Effective Date. If the date in the written confirmation from PCCW Global is different to that specified on the relevant Order Form then the date in the confirmation from PCCW Global shall be the Service Provision Guarantee Date.
(ff) Specific Terms means the specific terms applicable to a Service set out in the Schedule relating to that particular Service.
(gg) Tax means any present or future 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 any 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.
(hh) Third Party Supplier means a telecommunications service provider, including an Affiliate, from whom PCCW Global procures services or service components in order to provide the Services to the Customer.
[END OF GENERAL TERMS AND CONDITIONS]
GENERAL TERMS AND CONDITIONS OF SUPPLY OF TELECOMMUNICATIONS SERVICES
PCCW GLOBAL GENERAL TERMS AND CONDITIONS OF SUPPLY OF TELECOMMUNICATIONS SERVICES
These General Terms and Conditions of Supply of Telecommunications Services represents PCCW Global's standard terms and conditions of supply and in the absence of negotiated and fully executed terms of supply at the time of Order acceptance, govern all Orders for Services to be provided by PCCW Global.
1. INTERPRETATION
The Dictionary in clause 17 defines some of the terms used in these General Terms and Conditions or in the Specific Terms.
2. SERVICES
(a) PCCW Global shall provide each Service to the Customer in accordance with this Agreement.(b) Where Service Levels apply to a Service, PCCW Global shall use its reasonable endeavors to provide that Service in accordance with those Service Levels. If PCCW Global fails to meet those Service Levels at any time, the Customer's sole and exclusive remedy in respect of that failure shall be as provided in the Service Levels.
(c) In managing its Network, and subject to clause (h) below, PCCW Global will determine the most appropriate means of providing a Service including, without limitation, the method, technology and route of delivery and may vary the method, technology and route of delivery at any time.
(d) In respect of the provision of the Services in any particular geographic area ("Territory") in which PCCW Global is not itself permitted by the Applicable Laws to provide the Services, the Customer hereby agrees that PCCW Global shall arrange for the provision of these Services, either on its own behalf or as the Customer's agent, from an Affiliate or Operator nominated by PCCW Global that is authorized to provide telecommunication services in that Territory. Prior to entering into any contract with an Operator pursuant to this paragraph, PCCW Global shall obtain Customer's written consent to any additional terms or conditions imposed by the Operator. PCCW Global shall have no liability to Customer for delays in accepting an Order Form or provisioning a Service resulting from Customer delay in consenting to any such Operator terms and conditions. Customer may elect to reject Operator terms relevant to any Service or service component, and upon notifying PCCW Global of its election, the Order Form to which those Operator services relate shall be deemed withdrawn by Customer.
(e) Any satellite services ordered by Customer hereunder are provided, and may be invoiced directly to Customer, by PCCW Global (HK) Limited, a PCCW Global Affiliate pursuant to these General Terms and Conditions and the applicable Specific Terms.
(f) To ensure the security of its Network or in compliance with Applicable Law, the Customer acknowledges that PCCW Global may monitor Customer's use of a Service or intercept a Service, but only to the extent so required and for the purposes permitted hereunder.
(g) The Customer acknowledges that the Services may not be fault free. If any faults arise in the operation of a Service, the Customer shall immediately notify PCCW Global. In the event of a fault, PCCW Global shall use its reasonable endeavors to remedy the fault as soon as practicable.
(h) The Customer acknowledges that, with respect to accepted Orders, PCCW Global may vary or modify the Service description for any Service at any time, provided that such variation or modification does not result in an adverse impact on the features, price, or functionality of the Service as agreed by the Parties at the time of Order acceptance. With respect to future Orders, PCCW Global may vary or modify the Specific Terms for any Service at any time, upon prior written notice and such amended Specific Terms shall apply to any new Orders accepted by PCCW Global after the expiry of the notice period.
(i) All Services shall be subject to acceptance by Customer within three (3) days of the date of PCCW Global's written notice of service commencement. Within said three (3) day period, Customer shall provide PCCW Global with a written notice of any deficiencies in the Service, as measured against the applicable Service Levels or other functional specifications provided by PCCW Global to Customer with respect to such Service. In the absence of such written notice, the Service shall be deemed accepted and the Service Commencement Date shall be the date of PCCW Global's notice. PCCW Global shall be entitled to commence billing for the Service as of the Service Commencement Date and 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.
(j) Where available, Customer may submit an electronic Order Form for Services. Customer acknowledges and agrees that upon acceptance by PCCW Global of any electronic Order Form submitted by Customer, such Order Form shall constitute a legally binding commitment, whether or not actually signed by either Party.
3. TERM
(a) This Agreement shall come into force on the Effective Date and shall continue for an initial period of three (3) years. Unless terminated in accordance with the provisions of clause 13 below, this Agreement shall automatically renew for additional periods of one (1) year unless prior to the end of the then-current term, either Party provides not less than sixty (60) days' written notice of its intention not to renew. In the event that either Party elects to terminate this Agreement at any time without cause, such termination shall not operate to terminate any existing, accepted Order Form and these General Terms and Conditions shall continue to apply to any such Order Form until its expiration.(b) If PCCW Global is unable to supply a Service by the Service Provision Guarantee Date, PCCW Global will notify the Customer as soon as practicable of the cause of the delay and, subject to any service levels associated with such delay, the Parties will agree a revised Service Provision Guarantee Date.
(c) Unless otherwise specified in the Specific Terms or the relevant Order Form, the initial Minimum Commitment Period for each Service shall be twelve (12) months. Upon expiration of the Minimum Commitment Period, the Service term shall automatically renew on a month-to-month basis unless otherwise agreed by the Parties or either Party provides notice of its intention to terminate in accordance with the provisions of Clauses 13.2(a) or 13.3(b).
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, cooperating with all reasonable instructions of PCCW Global with respect to the facilities, any Customer Equipment, obtaining and maintaining any required licences or permits, and ensuring that the Services are used in accordance with the terms of this Agreement, the Acceptable Use Policy, and any Applicable Law.
5. SERVICE NUMBERS
(a) 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.(b) The Customer acknowledges that PCCW Global may withdraw or change any Service Number upon reasonable notice being provided to the Customer.
(c) 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.
(d) 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.
(e) The Customer shall be responsible for all Charges incurred through 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.
(f) The Customer shall be responsible for keeping any Network User Identity, which has been assigned to the Customer, confidential.
6. CHARGES AND TAXES
6.1 Calculation
(a) The Customer must pay PCCW Global the Charges for each Service:(i) in accordance with the Order Form;
(ii) from the Service Commencement Date; and
(iii) in accordance with this clause 6.
(b) The Customer agrees:
(i) to pay the Charges which PCCW Global's records attribute to the Customer for a Service;
(ii) that fixed Charges shall be billed monthly in advance and variable (usage-based) Charges shall be billed monthly in arrears;
(iii) that records held and call logging procedures adopted by PCCW Global will be prima facie evidence of the usage of a Service and the Charges payable by the Customer; and
(iv) that it is responsible for all Charges incurred between the time that the Customer makes a request for termination of a Service and the time of the actual termination of the Service.
(c) If the calculation for any amount or Charge 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 Charge due for the part month shall be calculated pro-rata, on the basis of the actual number of days in the relevant month.
(d) Where Customer requests a delay in the Service Provision Guarantee Date after acceptance of the Order Form, Customer shall nevertheless be liable to pay any Third Party Supplier charges incurred by PCCW Global as a result of such Customer-initiated delay.
(e) In the event that PCCW Global's staff and/or authorized agents have been called upon to attend to a fault at the Customer's Premises, Customer shall be liable to pay the costs of such service call at PCCW Global's then prevailing man-hour rates and/or the actual costs of any subcontractor or supplier dispatched on Customer's behalf, if the fault is not attributable to any of the Equipment or PCCW Global's telecommunications systems.
6.2 Variation of Charges
PCCW Global may not increase the Charges during the Minimum Commitment Period, provided that, PCCW Global may pass through to Customer any additional fees or costs resulting from a change in regulation, new tax, or similar surcharge imposed by any regulatory or governmental body on the Services.6.3 Invoicing and Payment
(a) PCCW Global will issue or cause a third party to issue a monthly invoice to the Customer outlining the Charges that are due. Unless otherwise stated in the Specific Terms, fixed, recurring Charges are billed monthly in advance and variable, usage-based Charges are billed monthly in arrears.(b) PCCW Global reserves the right to:
(i) re-issue any bill if any error is subsequently discovered; and/or
(ii) bill the Customer through a billing agent or any of its Affiliates.
(c) PCCW Global may include Charges omitted from an earlier invoice in a subsequent invoice.
(d) Subject to paragraph (g) below, the Customer must pay each invoice:
(i) within thirty (30) days from the date of the invoice ("Due Date");
(ii) in the currency indicated on the invoice. If the Customer pays the Charges in a currency other than the currency indicated on the invoice and such payment results in any currency exchange lost to PCCW Global, such currency exchange lost shall be charged to the Customer as necessary so that PCCW Global receives an amount equal to the sum it would have received in accordance with the currency for Charges indicated on the invoice;
(iii) except as permitted by 6.3(g) below, without set off, counter claim or deduction for any amount (including, without limitation, Taxes); and
(iv) in the manner specified in the invoice, or if no such manner is specified, by cash, cheque, direct debt or other method permitted by PCCW Global.
(e) If a cheque or payment by direct debit is dishonored or cancelled, the Customer agrees to pay to PCCW Global any:
(i) resulting bank or other charges incurred by PCCW Global; and
(ii) a reasonable administration charge imposed by PCCW Global.
(f) If a payment due by the Customer to PCCW Global under this Agreement is not received by the Due Date PCCW Global shall be entitled to:
(i) charge daily interest on outstanding amounts, until payment in full is received by PCCW Global, at the rate of 1.5% per month from the Due Date until paid in full; and
(ii) charge any additional charges or expenses incurred by PCCW Global in recovering outstanding amounts due under this Agreement (including, without limitation, any legal costs and expenses, the cost of engaging a debt recovery agent, or the cost of instituting legal proceedings).
(g) All enquiries or disputes concerning any invoice must be notified to PCCW Global, along with any supporting documentation, on or before the Due Date. Nothing in this clause 6.3(g) shall relieve the Customer of its obligation to pay PCCW Global the undisputed portion of any invoice on or before 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 in accordance with this clause 6.3(g).
(h) PCCW Global may set off any amount owed by the Customer to PCCW Global against any amount owed by PCCW Global to the Customer under or in relation to this Agreement.
6.4 Taxes
(a) The Charges are exclusive of any Taxes.(b) 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.
(c) 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 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.
(d) If, pursuant to clause 2(d), PCCW Global obtains any facilities from an Operator, whether on its own behalf or as the agent of the Customer, and if PCCW Global is required to pay Taxes in relation to such facilities, the Customer agrees to pay all Taxes in relation to such facilities.
7. SECURITY
(a) PCCW Global may, as a condition to implementing any Order Form and based on its reasonable commercial judgment of Customer's creditworthiness, impose a deposit or other security requirement, including, without limitation, advance payment, letter of credit, or credit limit ("Security").(b) In addition to the rights set forth in clause 7(a), in the event that (i) in PCCW Global's reasonable commercial judgment, Customer experiences a material, adverse change to its financial position, (ii) Customer's actual usage exceeds the estimated usage on which the initial Security amount was determined, or (iii) PCCW Global is required to issue a notice to Customer under Section 13.3(a) below hereunder three (3) times in any twelve (12) month period, then PCCW Global reserves the right to demand Security against due payment of all Charges. If Customer fails to provide Security within ten (10) days of PCCW Global's written demand, then PCCW Global may elect to suspend Services without liability to Customer of any kind until such Security is received.
(c) The Customer authorizes PCCW Global, without prejudice to any other rights and remedies available to PCCW Global, to deduct amounts from the Security, where applicable, for payment of any outstanding Charges and costs incurred by PCCW Global as a result of Customer's breach of its obligations under this Agreement.
(d) 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(c).
(e) 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.
8. EQUIPMENT
8.1 Property in Equipment
The Equipment is and will at all times remain the property of PCCW Global. Except where resulting from the negligence or wilful misconduct of PCCW Global or its subcontractors, Customer shall be liable for any damage to Equipment installed on Customer's Premises, including, without limitation, losses due to vandalism or theft. Customer shall keep the Equipment free and clear of any and all liens and shall not use the Equipment for any purpose or in any manner other than as approved by PCCW Global. Any Equipment in the care and custody of Customer shall be returned to PCCW Global, at PCCW Global's expense, in good working order, reasonable wear and tear excepted, upon termination of this Agreement or the Service to which the Equipment relates.8.2 Repair and replacement of Equipment
PCCW Global shall be responsible to repair or replace, at its sole discretion, any faulty or non-operational Equipment located at the Premises. Except where the cause of the failure of the Equipment is due to Customer's non-compliance with clause 8.1 above, such repair and replacement will be free of charge.8.3 Customer Equipment and Customer Software
(a) PCCW Global is not responsible for the installation, maintenance, compatibility or performance of any Customer Equipment or any Customer Software.(b) If any Customer Equipment or any Customer Software impairs a Service, the Customer remains liable for the Charges.
(c) 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.
(d) If the Customer provides any router to interface with a Service, the Customer must cooperate with PCCW Global in configuring and managing such router.
8.4 Sale of Equipment
In the event that Customer wishes to purchase equipment from PCCW Global for use in connection with any Service, the terms and conditions of such purchase shall be separately agreed, in writing, by the Parties. Notwithstanding the foregoing, PCCW Global is not an equipment manufacturer and where it offers supply of equipment to a customer, its sole liability with respect thereto shall be to pass through to Customer any rights and remedies offered by the manufacturer. For the avoidance of doubt, any equipment purchased by Customer from PCCW Global in connection with the delivery of a Service shall be deemed Customer Equipment for the purposes of this Agreement.9. CUSTOMER PREMISES
9.1 PCCW Global's access rights
Where PCCW Global has placed Equipment on the Customer's Premises, the Customer shall ensure that PCCW Global, 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 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
The Customer shall be responsible for complying with the written site specifications for the Equipment with respect to air-conditioning, electricity and other utility services and environmental conditions at the Premises.
10. INDEMNITY
10.1 Indemnification
Each Party shall indemnify the other from any claims by third parties and expenses (including, without limitation, legal fees and court costs) respecting damage to tangible property, personal injury or death caused by the indemnifying Party's gross negligence or wilful misconduct. Notwithstanding anything contained herein to the contrary, Customer shall indemnify and hold PCCW Global harmless from and against any and all Losses incurred as a result of any claims against PCCW Global by Customer's end users or other third parties acting through their relationship with Customer.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, Customer's content; Customer's modifications to the Service or 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 may replace or modify the alleged infringing Service so that the Service becomes non-infringing. If neither of the foregoing alternatives can, in PCCW Global's opinion, reasonably be achieved, then PCCW Global may terminate the affected Service without liability other than as stated in Section 10.2(a).
10.3 Other Obligations of the Indemnified Party
The indemnified Party under this clause 10 must promptly notify the indemnifying Party in writing upon learning of any claim or suit for which indemnification may be sought, provided the failure to do so shall have no effect to the extent the indemnifying Party is prejudiced thereby; and (a) the indemnified Party shall have the right to participate in the defense or settlement with its own counsel and at its sole expense, but the indemnifying Party shall have the sole control of the defense or settlement; and(b) the indemnified Party shall reasonably cooperate with the defense.
11. LIABILITY
11.1 Limitation of Liability
(a) Neither Party shall be liable to the other Party hereunder, or to any third party, for Consequential Losses, howsoever arising, whether in contract, tort (including negligence), or otherwise, and whether or not such Consequential Loss was foreseeable, or a Party was advised of the possibility of such Consequential Loss.(b) 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) Except for Customer's obligation to pay any Charges due hereunder, including, without limitation, Cancellation Charges, each Party's liability to the other Party for any and all claims arising under this Agreement, whether in contract, tort (including negligence) or otherwise shall be limited to direct, proven damages and shall not exceed the amount paid by Customer to PCCW Global for the Service(s) to which the damages relate during the twelve month period immediately preceding the occurrence that led to or caused the damages.
(d) 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 has separately established a contract with said supplier for services or a Service component.
11.2 Exclusion of liability and implied warranties
Notwithstanding any term of this Agreement and to the extent permitted by law: (a) Other than the payment of service credits as provided in the applicable Specific Terms, PCCW Global shall not be liable for any Loss suffered by the Customer as a result of PCCW Global's failure to meet any Service Levels; and(b) 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.
Nothing in this Agreement excludes or restricts a Party's liability for death or personal injury resulting from the negligence of that Party.
12. SUSPENSION OF SERVICE
12.1 Right to suspend any Service
PCCW Global may at its discretion elect to suspend immediately all or part of any Service, at any time, until further notice on notifying the Customer verbally or in writing in the event that: (a) Customer is in breach of any of its obligations, pursuant to clause 13.3; or(b) PCCW Global reasonably suspects that any activities not authorized under this Agreement have occurred or are occurring in relation to a Service, whether or not such activities are carried out by the Customer; or
(c) PCCW Global considers it necessary to carry out work for upgrading or maintaining the Equipment or the Network provided that, in the case of suspension for maintenance, PCCW Global gives the Customer the maximum advance notice practicable in the circumstances; or
(d) PCCW Global is ordered by any court, agency, or other government authority to cease providing the Service or the provision of a Service would cause PCCW Global to be in breach of any Applicable Law.
12.2 Suspension of any Services (a) Without prejudice to clause 11 (Liability), PCCW Global is not liable to the Customer or any third person for any Loss resulting from, or in connection, with the suspension of a Service under this clause 12.
(b) If PCCW Global elects to suspend the provision of one or more Services under clause 12.1(a) above, the Customer shall reimburse PCCW Global for all reasonable costs incurred by PCCW Global in implementing such suspension and in re-commencing provision of the Services.
(c) The exercise of any of PCCW Global's rights under this clause 12 is in addition to and not in lieu of any other remedy available to PCCW Global under this Agreement.
13. TERMINATION
13.1 Termination by either PCCW Global or the Customer
Either Party may terminate this Agreement as a whole at any time with immediate effect on the giving of notice to the other Party if the other Party is a legal entity (including a partnership), and it becomes or appears likely to become insolvent or bankrupt, subject to a winding up proceeding, has a receiver appointed, 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 or this Agreement as a whole: (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 two (2) months' prior written notice; or(b) if PCCW Global is in breach of any material obligation hereunder and fails to remedy such breach within thirty (30) days after receiving written notice requiring it to do so.
13.3 Termination by PCCW Global
PCCW Global shall have the right to terminate one or more Services or this Agreement as a whole forthwith at any time in any of the following events: (a) if 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 Commitment Period by giving the Customer two (2) months 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 is named as a defendant or threatened with suit in any action or proceeding that is based on the use of the Service by, or conduct of, Customer or its end users;
(e) PCCW Global is prohibited from supplying a Service under any Applicable Law, provided that PCCW Global shall give Customer as much advance notice of any such termination as is practicable under the circumstances.
13.4 Cancellation Charge
(a) Where, after an Order Form is accepted by PCCW Global, the Customer terminates one or more of the Services without cause, or PCCW Global terminates a Service for cause, as set forth in clause 13.3(a), (c), or (d), before the expiry of the Minimum Commitment Period, the Customer shall pay a Cancellation Charge to PCCW Global calculated on the basis 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 Commitment 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.(b) 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 Commitment Period.
13.5 Consequences of termination
(a) Upon the date of termination of this Agreement, all 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. Any Equipment shall be returned to PCCW Global within thirty (30) days of the termination date in good working order, reasonable wear and tear excepted.(b) Without prejudice to clause 11 (Liability), PCCW Global will not be liable to the Customer or to any third party for any Loss resulting from or in connection with termination of this Agreement under this clause 13.
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, clauses 6 (Charges and Taxes), 8 (Equipment), 10 (Indemnity), 11 (Liability), 13 (Termination), 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 shall keep confidential and shall not disclose to any person any and all written and/or oral information of any kind relating to this Agreement or disclosed by the other Party pursuant to this Agreement or 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.(b) The obligations under this clause 14 shall not apply, however, to any information which:
(i) was already in the public domain or which becomes so through no fault of the receiving Party; or
(ii) is approved for release by prior written authorization of the disclosing Party.
(c) Subject to the provisions in clause 14.1(b) these obligations of confidentiality shall continue for a period of three (3) 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
(a) 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.(b) 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.
(c) The dispute resolution procedure described in this clause 15 does not prevent a Party seeking urgent interlocutory relief.
(d) English shall be the language of all proceedings.
16. GENERAL
16.1 Governing law and Jurisdiction; Waiver of Immunity
(a) This Agreement shall be governed in all respects by the laws of the jurisdiction where the PCCW Global entity named on 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.
16.2 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.16.3 Export Control
The Customer acknowledges that the export, import or use of certain encryption products provided under this Agreement may be subject to the laws of foreign governments. The Customer warrants that it shall not export, import or use any encryption product without obtaining all required government authorizations and licenses.16.4 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 shall be due a Force Majeure Event.16.5 Notices
Any notices required to be given hereunder shall be sufficiently given if sent by hand, facsimile transmission, or post addressed to the principal or registered office of the Party to be served. Any such notice shall be deemed to have been received: (a) if by hand delivery, when it is delivered;(b) if a letter, three (3) days after posting or seven (7) days, if posted to or from a place outside the recipient's home country; and
(c) if a 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.
16.6 Entire Understanding
(a) This Agreement embodies the entire understanding between the Parties in relation to the Services and there are no promises, terms, conditions or obligations oral or written expressed or implied other than those contained in this Agreement.(b) 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.
16.7 Amendment of Agreement
This Agreement may only be amended by written agreement between the Parties.16.8 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.16.9 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.16.10 Cumulative rights
The rights and remedies of a Party under this Agreement do not exclude any other right or remedy provided by law.16.11 Continuing indemnities and survival of indemnities
(a) Each indemnity contained in this Agreement is a continuing obligation despite a settlement of account or the occurrence of any other thing, and remains fully effective until all money owing, contingently or otherwise, under an indemnity has been paid in full.(b) Each indemnity contained in this Agreement:
(i) is an additional, separate and independent obligation and no one indemnity limits the generality of another indemnity; and
(ii) survives the termination of this Agreement.
16.12 Counterparts; Facsimile
This Agreement, or any amendment to this Agreement, may be executed in any number of counterparts with the same effect as if all Parties all signed the same document. All counterparts will be construed together and will constitute one and the same agreement. This Agreement, or any amendment to this Agreement, may be executed by the Parties and transmitted by facsimile transmission and if so executed and transmitted this Agreement, or any such amendment, will be for all purposes as effective as if the Parties had delivered and executed one original agreement.16.13 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.17. DICTIONARY AND RULES OF INTERPRETATION
17.1 Part 1
In this 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 the General Terms and Conditions, Specific Terms for each Service and the Order Form relating to each Service.
(c) Affiliate means, in relation to an entity, any other entity which directly or indirectly controls, is controlled by, or is under common control with, such entity.
(d) Applicable Law means any applicable 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 in any jurisdiction where the Services are provided.
(e) Business Day means a day other than a Saturday, Sunday or public holiday in the country where the Services are performed.
(f) Cancellation Charge means the liquidated damages that may be payable by the Customer as described in 13.4.
(g) 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 payable by Customer in relation to a Service.
(h) 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.
(i) Customer Equipment means all hardware, software and consumables owned by the Customer or licensed or leased to the Customer by a third party and used in relation to a Service.
(j) Customer Software means any software provided by the Customer or licensed to the Customer by a third party.
(k) Defect means a defect, error or problem in a Service or Equipment.
(l) Effective Date means the date set forth above, or, if no date is set forth, then the date of the first Customer Order hereunder.
(m) Equipment means the equipment (including any software contained in that equipment) provided or used by PCCW Global to make available a Service to the Customer that may be installed at the Premises, including any equipment licensed or leased to the Customer by PCCW Global under this Agreement, but excluding any Customer Equipment.
(n) Force Majeure Event means an event outside the reasonable control of PCCW Global, 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 telecommunication network outage or degradation.
(o) Global Service Customer Report means the Customer reporting product, which provides the Customer with reports on its use of the Service.
(p) 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.
(q) Loss includes any loss, costs, damages, expense, liability and charge incurred by a Party, including Consequential Loss.
(r) Minimum Commitment 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.
(s) Network means the telecommunications network owned or operated by PCCW Global 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.
(t) Network User Identity means an identity number, assigned by PCCW Global to the Customer that allows the Customer to use a Service.
(u) Operator means a provider of telecommunications services as described in clause 2(d).
(v) 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.
(w) Premises means the premises indicated in an Order Form.
(x) Schedule means a schedule to this Agreement.
(y) Service means a telecommunications service supplied by PCCW Global to the Customer under this Agreement pursuant to an Order Form which service is more fully described in the Specific Terms.
(z) Service Commencement Date means, with respect to a Service, the date on which PCCW Global delivers the Service to Customer.
(aa) Service Levels means, where applicable to a Service, the committed levels of service in accordance with which PCCW Global will use its reasonable endeavors to provide that Service, as specified in the Specific Terms and, unless otherwise set forth in the applicable Service Level, excludes services procured by Third Party Suppliers.
(bb) Service Literature means any brochure, tariff schedule, customer guide, code of practice, device description, instructions or manual issued by PCCW Global from time to time in connection with the provision of a Service.
(cc) Service Management Centre means the service management centre operated by PCCW Global which provides a helpdesk facility for the Customer in respect of the Service and by which the Customer may make general enquiries regarding a Service, fault management, planned outages for a Service, service ordering, service provisioning or making billing queries.
(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) Service Provision Guarantee Date means the date on which the Customer is intended to be able to use the Service and which is specified on the relevant Order Form and confirmed in writing by PCCW Global after the Effective Date. If the date in the written confirmation from PCCW Global is different to that specified on the relevant Order Form then the date in the confirmation from PCCW Global shall be the Service Provision Guarantee Date.
(ff) Specific Terms means the specific terms applicable to a Service set out in the Schedule relating to that particular Service.
(gg) Tax means any present or future 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 any 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.
(hh) Third Party Supplier means a telecommunications service provider, including an Affiliate, from whom PCCW Global procures services or service components in order to provide the Services to the Customer.
Contact a Representative
Get the information you need from a regional expert.