GENERAL TERMS AND CONDITIONS (USA)
Effective Data: July 1, 2018
General Terms and Conditions
1.1 Unless the context says otherwise, the following words and expressions shall have the following meanings:
“Agreement” means the Application, the General Terms and Conditions (“GTC”) herein and the Special Terms and Conditions (“STC”) (if any) as may be amended by the Company from time to time; if there is any inconsistency among the Application, the GTC and the STC, the following order of priority shall apply to the extent necessary to resolve the conflict or inconsistency:
“Applicable Law(s)” in relation to any Party, action or thing means:
a) any law, rule or regulation of the Territories or any country (or political subdivision of the country) which is applicable to a Party;
b) any obligation under any License held by a Party in a Territory or any country (or political subdivision of the country);
c) any lawful determination, decision, direction, guideline, statement or code of practice of a government agency in the Territories or any country (or political subdivision of the country) which is applicable to a Party; or
d) any applicable international convention or agreement.
“Application” means the valid Service Order Schedule submitted by the Customer to the Company requesting for the provision of Services.
“Company” means ComNet (USA) LLC, including its successors and assigns.
“Customer” means any person, firm or entity including any individual, corporation or unincorporated body who applies for or uses any of the Services of the Company or to whom the Company has agreed to provide the Services pursuant to the Application.
“Charges” means any applicable charges charged by the Company for the provision of the Services, from time to time including, without limitation to, installation, removal or delivery charges, late charges and such other fees and charges payable by the Customer through using the Services in accordance with the Application and the STC as may be charged from time to time.
“Equipment” means the equipment (where applicable, which may be provided by the Company directly or not, and/or which may be installed at the Premises for the use of the Services) to make available the Services to the Customer.
“License” means license or licenses issued by the Office of the Communications Authority to the Company for the provision of the relevant Services.
“Party” the Company and the Customer are collectively referred to as the “Parties” and individually, a “Party”.
“State of California” means the State of California of USA.
“Premises” means any premises or place at which the Services are used from time to time.
“Services“ or “Service” means the telecommunications services, and any other services provided by the Company to the Customer as specified in Service Order Schedule, including the Equipment where applicable as shall be provided by the Company from time to time.
“Software” unless otherwise specified, means any software supplied by the Company to the Customer for the use or access to the Services.
“Special Terms and
Conditions” or ”STC” means specific terms and conditions (if any) as applicable to the relevant Services from time to time.
“Territories” means the State of California and any other location where the Services will be provided and/or received.
“Network” means the public telecommunications networks and systems by which the Company makes the relevant Services available.
1.2 Heading are inserted for ease of reference only and do not affect the interpretation of this Agreement.
1.3 The masculine gender includes the feminine and neuter, and the singular number includes the plural, and vice versa.
2. PROVISION OF SERVICES
2.1 Subject to the terms and conditions contained herein, the Company will use its reasonable endeavors to provide the Services to the Customer in accordance with the Application. The Company will make reasonable efforts to start providing the Services on each date as requested by the Customer, but shall not be liable to the Customer or any third party should the Services fail to start on that date.
2.2 The Company will use due care and skill in providing the Services to the Customer. Given the nature of telecommunication industry, the Company cannot promise that the Services will be continuous or fault free; or, the Equipment or device the Company provides will never be faulty.
2.3 The Company is not responsible for any acts or omissions arising from the Customer’s breach of this Agreement.
2.4 The Customer acknowledges and agrees that the Company has the sole discretion to determine or vary, without notice to the Customer, the means of providing the Services to the Customer, including using different implementation method, technology, and route of delivery of the Services to the Customer, as long as the agreed service level is maintained.
2.5 The Company reserves the right to change the Services’ specification and conditions by posting the same on the websites as specified by the Company from time to time and such change shall take effect upon posting, and Company will provide a more prominent notice to the Customer if changes are significant. In case of dispute, the Company’s decision shall be final and binding.
2.6 To use the Services, the Customer may be asked to create an account (“Customer Account”). As part of the account creation process, the Customer may be asked to provide the email address, create a password, provide a telephone number and any other document the Company thinks fit. The Company is entitled to conduct credit-check, compliance-check and otherwise assess the good standing and suitability of the Customer. Any refusal to provide the document required may result in failure to create the Customer Account.
2.7 The Customer acknowledges and agrees that:
(1) the Customer must not use or allow the Services to be used for any purpose other than that from which he/she has subscribed;
(2) the Customer must not use the Services in (a) any unlawful, fraudulent, improper, unauthorized, harassing, discriminatory, libelous, abusive, threatening, harmful, vulgar, obscene or otherwise objectionable manner; (b) a way to encourage conduct that could constitute a criminal offence, give rise to civil liability or otherwise violate any Applicable Law; (c) a way to infringe any third party’s intellectual property rights; (d) a way that may be harmful or detrimental to the Company or its reputation; (e) a way that contravene any legal or regulatory requirements applicable to the Services or any instructions or guidelines as may be imposed by the Company from time to time for the use of the Services;
(3) when the Customer provides information to the Company, the information must be complete, true and up-to-date in all respects;
(4) the Customer must not, and must not attempt to, hack, break into, access or by other unauthorized means use, any part of the Services, data areas or servers for which the Customer has not been authorized by the Company;
(5) the Customer shall ensure that all Equipment provided by itself, or on behalf of the Customer, to be used in the Services, is technically compatible with the relevant Services and such equipment complies with and is used in accordance with all reasonable procedures and any Applicable Law;
(6) the Customer will not alter, tamper, reverse engineer, repair or attempt to repair the Services, Equipment or cause, or allow, a third Party to do any of these acts;
(7) the Customer is solely responsible for all use (whether or not authorized) under his/her Customer Account, including for the quality and integrity of its data and each of the Applications. The Customer shall take all reasonable precautions to prevent unauthorized access to or use of the Customer Account and the Services and will notify the Company promptly of any unauthorized access or use. The Company will not be liable for any direct, indirect, incidental, special or consequential loss or damage arising from unauthorized use of the Customer Account and the Services;
(8) the Customer represents and warrants that: (a) the information provided in connection with the Customer Account for the Services is accurate and complete; (b) the Customer is duly authorized to use the Services in the jurisdiction where the Customer operates; and (c) in the event that the Customer Account created by an individual but used by an entity, the Customer is an authorized representative of his/her entity, duly authorized to access the Services and to legally bind such entity to this Agreement and all transactions conducted under the Customer Account; and
(9) unless otherwise specified, the Customer shall not transfer, resell, lease, license or otherwise make available the Services to third parties or offer them on a standalone basis.
2.8 All requests for Services requiring installation of the Equipment at the Customer’s Premises shall be subject to review and acceptance by the Company.
3. PAYMENT OF CHARGES
3.1 The Customer agrees to pay the Company all Charges relating to the provision of the Services by the Company to the Customer (including amounts billed by the Company for and on behalf of another person) as may be specified by the Company from time to time. The Company reserves the right to adjust the Charges by posting the same on the websites from time to time and such Charges shall take effect upon posting, and the Company will provide notice to the Customer
3.2 Payment made by post, by electronic means or through Internet shall be at the risk of the Customer. The Customer’s obligation to pay will not be discharged until the payment is received by the Company.
3.3 In the event of any dispute between the Company and the Customer relating to any Charges billed by the Company, the books and records of the Company are conclusive evidence of all such Charges incurred by the Customer.
3.4 Time is of the essence in this Agreement in respect of the obligations of the Customer to pay money. If Customer fails to pay the Charges by the due date, Company will be entitled to charge overdue amount to Customer’s credit account registered or otherwise Company will charge interest on all sums outstanding at the rate of 0.5% per month on any overdue amount calculated from the date the payment was due until the date of actual payment. The Company shall also entitled to charge Customer for collection agent fee and handling fee as Company think fit.
3.5 The Customer will be liable for all Charges for the Services provided by the Company under its Customer Account, whether or not such Services is used by the Customer, or another person with or without Customer’s knowledge or consent and irrespective of whether the transmission of the Services was successful.
3.6 Enquiries or disputes concerning any invoice must be made to the Company on or before the payment due date stated in the invoice, however nothing in this clause relieves the Customer from paying the full amount stated in the invoice on or before the payment due date. If any Charge is not queried before the due date, then the invoice is deemed correct and accepted by the Customer.
4.1 The Customer agrees that the Company may, at any time, require the Customer to provide a security deposit to the Company. The amount of any deposit will be solely determined by the Company. The Company reserves the right to increase the amount of the deposit from time to time.
4.2 Subject to clause 4.1, a deposit will only be refunded to the Customer by the Company without interest after the termination of this Agreement and the settlement by the Customer of all outstanding Charges payable or any claims brought by the Company in respect of a breach by the Customer of any of the terms and conditions of this Agreement.
4.3 The Customer acknowledges that any deposit paid or any Charges paid in advance is at his/her own risk and in the event that the Company goes into liquidation, any deposit or prepayment may not be refunded or reimbursed to the Customer. The Customer’s right to obtain a refund of any deposit or upfront payment will be subject to the Applicable Law governing liquidation of companies in the State of California.
5. TERMINATION AND SUSPENSION
5.1 Without prejudice to any other rights or remedies it may have (whether under this Agreement or at law), The Company may terminate this Agreement or Schedule(s), immediately or temporarily suspend the Services by serving written notice on the Customer if:
(1) any Charges or sums payable by the Customer under this Agreement remain unpaid after becoming due.
(2) the Customer dies or becomes insolvent or appears reasonably likely to become so; or
(3) the Charges for the use of the Services exceed the credit limit set by the Company from time to time; or
(4) the Company’s credit checks reveal that the Customer has a poor credit history; or
(5) the Customer commits a breach, or the Company reasonably believes that the Customer is likely to commit a breach, of any of the terms and conditions of this Agreement; or
(6) the Customer or any other person uses the Services in contravention of clause 2.7(2) or for any illegal or improper purpose; or
(7) any of the information provided by the Customer to the Company is found to be false or misleading; or
(8) any of the telecommunications or other licenses held by the Company or third party network provider is terminated, revoked, expired or not renewed; or
(9) the Company reasonably believes that it is necessary to suspend the Services to:
(a) comply with an order, instruction, determination or direction of a government or regulatory authority or third party network provider;
(b) carry out emergency or scheduled maintenance, repair or upgrading of the Services, any Equipment, facility or any part of the Company’s Network or third party network provider; or
(c) reduce or prevent fraud, interference with, damage to, or degradation of the Services;
(10) the Networks or the Equipments fail or require modification; or
(11) the Company or third party network provider ceases to provide any of the Services.
5.2 Termination or suspension of the Services shall not affect the Company’s rights, claims or other remedies available to the Company and suspension of the Services does not constitute a waiver of the Company’s right to terminate this Agreement thereafter.
5.3 If the Customer has maintained more than one Customer Account with the Company for receiving the Services from the Company and fails to pay any Charges by the payment due date for any of the Customer Account, the Company may, at its sole discretion, immediately suspend any Services in respect of any or all of the Customer Accounts. If the Customer has subscribed more than one Service and fails to pay any Charges regarding to any of the Services, the Company may, at its sole discretion, immediately suspend any or all of the Services.
5.4 Either the Company or the Customer may at any time terminate this Agreement without cause by giving to the other Party seven (7) calendar days’ prior written notice. If the Customer notifies the Company in accordance with this clause 5.4 the Customer must immediately pay the Company all amounts payable up to the date of termination.
5.5 The Customer shall remain liable for all Charges during the period of suspension unless, in the Company’s discretion, the Company decides otherwise.
5.6 The Customer will remain liable for all Charges prior to such disconnection. The Company reserves the right to charge for reconnection and revise terms and conditions of this Agreement including the terms of payment.
6. LIMITATION OF LIABILITY AND INDEMNITY
6.1 The Company does not guarantee the provision of continuous or fault-free Services. The Company makes no warranties or representations or statements in respect of, or accepts no responsibilities for, the accuracy, timeliness, completeness or correctness of any Services so provided nor is any warranty or undertaking given that any traffic requested pursuant to the Services will be delivered to or received by the Customer on time or at all.
6.2 The Customer shall not hold the Company or any third party network provider responsible for any loss or damage whatsoever suffered or incurred by the Customer or any other person using or accessing the Services, or as a result of using any such Services not having been received on time or at all.
6.3 The Services are provided “as is” with no warranties whatsoever. Save and except for any liability of the Company which cannot be excluded by Applicable Law, all express or implied warranties, representations or statements relating to the subject matter of this Agreement which are not contained in this Agreement are excluded. The Company excludes all liabilities or responsibilities for any cost, claim, damage or loss to the Customer or to any person whether direct or indirect of any kind including revenue, loss or profits or any consequential loss in contract, tort, under any statute or otherwise (including negligence) resulting from any interruption or failure of the Company’s Network or third party network provider or for any failure or delay or mistake in the provision of the Services or arising out of or in any way related to this Agreement (including any loss to the Customer arising from a suspension of Services).
6.4 The aggregate liability of the Company to the Customer under or in connection with this Agreement which is not excluded by clause 6.3, whether based on contract, tort (including negligence), statute, breach of warranty or any other legal or equitable ground is limited to:
(1) the sum of the Charges paid by the Customer in the 12-month period prior to the accrual of such liability; or
(2) the sum of the Charges paid by the Customer for the period that this Agreement has been in force prior to the accrual of such liability, if the period is less than 12 months;
whichever is the lower.
6.5 The Company will not be liable to the Customer or any other person for any loss or damage resulting from a delay or failure to perform this Agreement either in whole or in part where such delay or failure is due to causes beyond the Company’s reasonable control, or which is not occasioned by its fault or negligence, including acts or omissions of third parties (including telecommunications network operators and equipment suppliers), shortage of components, war, the threat of imminent war, riots or other acts of civil disobedience, insurrection, acts of God, restraints imposed by governments or any other supranational legal authority, industrial or trade disputes, fires, explosions, storms, floods, lightening, earthquakes and other natural calamities.
6.6 The Customer will have no claim of any nature against the Company for any actions the Company may take due to the Customer’s non-compliance and/or breach of this Agreement.
6.7 The Customer shall indemnify the Company from and against all claims, actions, proceedings or demands in respect of loss or damage of any kind (whether to person or property) incurred by the Company arising out of or in connection with a breach of this Agreement by the Customer or relating to the use or attempted use by any person (including the Customer) of the Services. The Company reserves the right, at the Customer’s expense, to retain separate counsel for the Company in connection with any claim or, if the Customer has not responded reasonably to the applicable claim, to assume the exclusive defense and control of any claim in which the Customer is a named party and that is otherwise subject to this indemnification clause. The Customer will pay all costs, reasonable attorneys’ fees and any settlement amounts or damages awarded against the Company in connection with any claim. The Customer will also be liable to the Company for any costs and attorneys’ fee the Company incur to successfully establish or enforce the right to indemnification under this clause.
6.8 Nothing in this Agreement in any way excludes or restricts a Party’s liability for death or personal injury resulting from the negligence of that Party.
6.9 Any claim by the Customer against the Company arising out of this Agreement must be notified in writing to the Company within one (1) month of the incident giving rise to such claim failing which the Customer will be deemed to have waived the Customer’s rights in respect of such claim.
7. OWNERSHIP OF INTELLECTUAL PROPERTY AND RESTRICTIONS
7.1 Intellectual Property Rights. The Customer acknowledges and agrees that the Services and its Application or use contain confidential and propriety information and technology of the Company and/or its licensors and embody trade secrets and intellectual property of the Company and its licensors protected under any local copyright and other Applicable Law, and by relevant international treaty provisions. The Customer’s rights in the Services and Application are limited to those license rights expressly granted under this Agreement, and the Company and/or its licensors retain all rights not expressly granted herein. Without limiting the foregoing, and with respect to the Services and Application, the Company and/or its licensors retain all right, title, and interest in to: (a) all software and firmware code (source and object), functionality, technology, system or network architecture, databases, tools, reports, user interfaces, URLs and domain names and all modifications thereto; (b) all trademarks (including without limitation, logos, slogans, trade names, service marks); (c) all trade secrets, ideas, inventions, patents, copyrights and other intellectual property rights with respect thereto; (d) all evaluations, comments, ideas and suggestions made by the Customer, even if those are incorporated into subsequent versions; and (e) any modifications or derivative works developed from or to any of the foregoing, specifically including any customizations, modifications or alterations to the Services for the Customer’s use (collectively “Intellectual Property Rights”). The Customer agrees to treat, protect and maintain the Intellectual Property Rights as strictly confidential and shall not disclose the Intellectual Property Rights to any third party. Further, no right, title or interest to any trademarks, service marks or trade names of the Company is granted by this Agreement. In no event shall the Customer alter or remove any copyright notice, trademark notice, and/or proprietary legend set forth on or contained within the Services. The Company’s licensors are intended third party beneficiaries of the provisions of these terms and conditions relating to the licensor’s intellectual property that has been incorporated into the Services.
7.2 Restrictions on Use. The Customer agrees not to modify, alter or create derivative works based upon all or part of the Intellectual Property Rights and, to the maximum extent permitted by Applicable Law, agrees not to reverse engineer, decomplie, disassemble or otherwise attempt to discover the source code of the Intellectual Property Rights. The Customer agrees not to use the Intellectual Property Rights for any purpose other than as provided herein, or to exceed the capacity of any seat, server or similar volume or usage restrictions. The Customer agrees not to make any copies of any software comprising any portion of the Intellectual Property Rights, except that where any software is furnished to the Customer via a disk or similar media or made available for download, the Customer may retain a single copy only for disaster recovery or archival purposes. The Customer shall not resell, rent, lease, distribute, host as a service, make available for timesharing, provide on a service bureau basis or otherwise make available for the benefit of third parties (whether for a fee or otherwise) the Services or any Intellectual Property Rights, in whole or in part. The Customer shall notify its employees and agents who may have access to the Services of the restrictions contained in this Agreement and shall ensure their compliance with these restrictions.
Company reserves the right to feature Customer name, logo, images or other media, which include but not limited to websites and WeChat accounts, and testimonials in future promotions and /or as business references without seeking prior consent, unless Customer has explicitly requested that the Company is not allowed to do this by given written notice and the Company has agreed to such a request.
Customer acknowledges that the Company may use the public description of Customer projects and the content of Customer’s profile information on the website & WeChat account for marketing and other related purposes.
9. Personal Data
9.1 Both Parties confirm that they shall comply with the Data Privacy Regulations/Laws applicable in their respective countries.
9.2 No Personal Data has been identified and confirmed by each Party during the provision of Services. In this regard, each Party shall notify the other Party in writing in due course if any Personal Data has been or will be processed by the other Party on behalf of the first mentioned Party. Under such circumstances, the Parties shall negotiate in good faith with a view of reaching a separate agreement for such processing and such agreement shall set out the subject matter and duration of the processing, the nature and purpose of the processing, the type of Personal Data and categories of data subjects involved and the obligations and rights of the Parties.
9.3 Without limiting each Party’s own obligation to comply with the applicable Data Privacy Regulations/Laws, each Party shall cooperate with the other Party to take all practicable measures required in accordance with good industry practice in relation to cybersecurity and data protection. In the event that any national regulator makes any determination materially affecting the provision of the Services as contemplated in this Agreement, the Parties shall negotiate in good faith and agree on any remedial measures to be taken by the Parties.
9.4 In this Section, Personal Data shall refer to any information relating to an identified or identifiable natural person or any information of a similar nature as defined in applicable laws.
10.1 Unless otherwise specified herein, the Company reserves the rights to adjust and modify any of the terms and conditions of this Agreement from time to time by giving thirty (30) calendar days’ notice to the Customer to that effect. For the avoidance of doubt, notice or other communication may be given by the Company to the Customer in the form of a letter, bill insert or message, email message, notice published on the Company’s official website, pamphlet available at the Company’s shop, the Company’s franchisee or agent retail outlet, advertisement placed in a local daily newspaper or any other method as determined as adequate by the Company. In addition, the provision of the Services pursuant to this Agreement by the Company are subject to the Applicable Laws, regulations, government policies or rules of any competent jurisdictions, including State of California. Notwithstanding anything contained herein, in case of any change of the said laws, regulations, government policies or rules, the Company shall be entitled to vary any terms and conditions of this Agreement by giving notice to the Customer in order to comply with the same.
10.2 The Company shall be entitled to assign or otherwise dispose of any of its rights or obligations under this Agreement to any other Party without the prior written consent of the Customer. The Customer must not assign or otherwise dispose of any of its rights or obligations under this Agreement to any other Party without the prior written consent of the Company.
10.3 This Agreement will be governed by and construed in accordance with the laws of State of California and the parties must submit to the non-exclusive jurisdiction of the courts of the State of California, in the event of any dispute, controversy or claim.
10.4 The parties are and shall be independent contractors, and nothing herein shall be deemed to cause this Agreement to create an agency, partnership, employment relationship or joint venture between the Parties.
10.5 Neither a failure or delay to, nor a single or partial, exercise of any right, power or remedy under this Agreement, by either Party will operate as a waiver. Unless expressly stated, the rights, powers and remedies provided under this Agreement are cumulative and are not exclusive of any rights, powers or remedies by Applicable Laws.
10.6 If any part or any provision of this Agreement is or becomes invalid, illegal or unenforceable, that part or provision shall be ineffective to the extent of such invalidity, illegality or unenforceability only, without in any way affecting the validity, legality or enforceability of the remaining parts of the said provision or the remaining provisions of this Agreement.
10.7 Save for the Company’s group companies, no other person who is not a Party to this Agreement has any right under the Contracts (Rights of Third Parties) Ordinance to enforce any terms and conditions and/or benefit of this Agreement.
10.8 Information provided on the Company’s website is for informational purpose only, is not exhaustive, and shall not be considered as any legal advice.
10.9 This Agreement supersedes all prior agreements, arrangements and undertakings between the parties and constitutes the entire understanding and agreement between the parties relating to the subject matter.
10.10 If any legal action, law suit, mediation, arbitration or other proceedings at law or in equity is brought or instituted to enforce this Agreement or to obtain damages or remedies arising from any breach of this Agreement, then all reasonable attorneys’ fees and expenses incurred by the prevailing Party shall be paid by the other Party immediately upon the conclusion of such legal action, law suit, mediation, arbitration and/or other proceedings at law or in equity.