1.1 The Customer wishes to order Service from the Company, and the Company is willing to provide such services to the Customer.
1.2 These Terms of Service for the Service (these "Service Terms"), are the Service Terms specifically applicable to the Service, and shall form part of the Agreement (as defined under the General T&C or the MSA, as applicable) for the Service.
1.3 Except as expressly stated in these Service Terms, all the terms and conditions under the General T&C or the MSA (as applicable), are incorporated into these Service Terms by reference, and both the Company and the Customer agree that they are bound by, and shall observe and comply with, such terms and conditions.
1.4 In giving effect to Clause 1.3 of these Service Terms, words and expressions defined under the General T&C or the MSA (as applicable) and the principles of interpretation set out under the General T&C or the MSA (as applicable) shall have the same meaning and the same effect in these Service Terms.
1.5 These Service Terms are strictly limited to provision of the Service, and shall not apply in respect of any other service(s) that may be provided by the Company to the Customer under any other Agreement.
"Acceptance Criteria" means, in relation to the Bandwidth Service, where a bit rate error test returns a result of less than 0.05% for a 24 hour period;
"Bandwidth Service" means bandwidth service, a full transparent POP-to-POP, POP-to-end, or end-to-end international private leased circuit service being part of the Service under the General T&C or the MSA (where applicable) provided by the Company to the Customer;
"Company" means the service providing company that has entered into the Service Agreement with the Customer, as more particularly specified on the relevant Order Form;
"Customer Access Point(s)" means the network device to which the Customer’s network is connected and is managed by the Company for the Service;
"Emergency Maintenance" means any maintenance other than a Scheduled Maintenance;
"ITU" means the International Telecommunication Union;
"ITU-T Recommendations" means the industry recommendations made from time to time by the ITU’s telecommunication standardisation sector;
"Other Charges" means:
(a) internal wiring, dedicated trunking, internal trunking, wayleave dues, customer premises equipment charges, and/or any applicable charges imposed by the building management office, data center, which may be notified by the Company to the Customer from time to time; and
(b) other charges (if any) as set out on the Order Form and/or these Service Terms;
"Planned Outage" means a scheduled event that may cause Service interruptions, deficiencies, degradations or delays during a Scheduled Maintenance;
"Planned Outage Time" means the total minutes of Planned Outages during a billing month;
"Ready for Service Date" means the effective date of the Service as specified in the Order Form, or if the parties are unable to commence the Service on such date, the same date as the Start Billing Date as defined under the General T&C or the MSA (as applicable);
"Service" means a service described in the Service Terms and/or Order Form, including but not limited to Bandwidth Service;
"Scheduled Maintenance" means the operational window of maintenance that are scheduled and agreed between the Company and the Customer in advance;
"Service Initial Term" means the initial term for the Service commencing from the Ready for Service Date as specified in the Order Form, or, if not so specified in the Order Form, a period of twelve (12) calendar months;
"Service Renewal Term" means the renewal term for the Service subsequent to the Service Initial Term as specified in the Order Form, or, if not so specified in the Order Form, successive periods of one (1) month; and
"Site(s)" has the meaning given under Clause 3.3(b) of these Service Terms.
3 Service Performance
3.1 The Company agrees to provide to the Customer, and the Customer agrees to procure from the Company the Service as described in the Agreement, subject to a fully executed Order Form, and the Company may provide the Service utilizing the Network of: (1) the Company; (2) Affiliates of the Company; and/or (3) Third Party Providers, as the Company may decide in its sole discretion.
3.2 The Company shall base its service parameters for the Service on those independent standards as defined under the ITU-T Recommendations by the ITU from time to time.
3.3 The Company shall provide the Service in accordance with the Service Information as set out in the Order Form, including:
(a) circuit usage, types of circuit, relevant interfaces and bandwidth; and
(b) locations (or third party locations where the Customer has a presence) at which the Service is to be provided (the "Sites").
3.4 Once the Service has been installed on each Site in accordance with the Order Form, the Customer shall be responsible for any cost, fee and expense to relocate the Service to a new Site.
4.1 These Service Terms shall become effective on the Commencement Date and shall remain effective unless terminated earlier in accordance with these Service Terms and/or the Order Form.
4.2 The Company shall start to deliver the Service to the Customer from the Ready for Service Date and continues during the Service Initial Term, and shall thereafter automatically renew for successive Service Renewal Terms, unless either party gives the other party prior written notice no less than 30 days before the expiry date of the Service Initial Term or the relevant Service Renewal Term of its intention to terminate the Agreement upon expiration of the Service Initial Term or the relevant Service Renewal Term, in each case unless terminated earlier in accordance with an Agreement.
4.3 If the Company has subcontracted the provision of all or any part of the Service to any Affiliate of the Company or Third Party Provider, the notice period required to terminate the Agreement under Clause 4.2 above have to be negotiated and agreed by the Parties on case by case basis, to which this Clause 4 shall not be applicable.
5 Installation and Acceptance Testing
5.1 The Company shall use its best endeavours to install the Service on each Site in accordance with the Order Form as soon as possible from the Commencement Date, but in any event shall not be later than the Ready for Service Date.
5.2 The Customer shall conduct the acceptance testing in relation to the Bandwidth Service within 3 days from the Ready for Service Date (the "Acceptance Testing Period") to determine whether the Bandwidth Service complies with the Acceptance Criteria. If:
(a) the Customer notifies the Company in writing within the Acceptance Testing Period that the Bandwidth Service complies with the Acceptance Criteria; or
(b) the Company does not receive any written notice from the Customer on expiry of the Acceptance Testing Period,then it shall be deemed that (1) the Customer has accepted the Bandwidth Service; and (2) the Company has started to deliver the Bandwidth Service to the Customer from the Ready for Service Date.
5.3 If the Customer notifies the Company in writing during the Acceptance Testing Period that the Bandwidth Service does not comply with the Acceptance Criteria:
(a) the Company shall promptly take such reasonable action as is necessary to correct any such non-compliance in relation to the delivery of the Bandwidth Service; and
(b) upon correction of such non-compliance by the Company, the mechanism in terms of Acceptance Testing Period under Clause 5.1 above shall apply.
5.4 The Customer's acceptance of the Bandwidth Service shall not be unreasonably withheld or delayed.
6.1 Subject to the Customer's liability to pay Other Charges, the Company, its Affiliates or Third Party Providers may be required to provide a Network terminating unit or data terminating unit (collectively, the “Equipment”) at each of the Sites.
6.2 The Equipment shall at all times remain the sole and exclusive property of the Company, its Affiliates or Third Party Providers (as the case may be), and the Customer shall have no interest or right in it except for quiet possession and the right to use the Equipment in accordance with an Agreement.
6.3 If any Equipment is removed or damaged by the Customer, other than as a result of reasonable wear and tear, the Company will invoice the Customer for the value of the Equipment immediately preceding such damage.
7.1 The Customer shall pay the Charges to the Company in accordance with the Agreement.
7.2 The Company has the right to increase the Recurring Charges and/or Other Charges by ten percent (10%) from the commencement of any Service Renewal Term immediately following the expiry of the Service Initial Term or the preceding Service Renewal Term, provided that the Company notifies the Customer in writing of such adjustment no less than 30 days before expiry of the Service Initial Term or the preceding Service Renewal Term (as the case may be).
8 Service levels
8.1 The Company shall, when providing the Service, use commercially reasonable efforts to meet the Service Levels in accordance with the Service Level Agreement.
8.2 The Company may amend or update the (1) Service Information; and/or (2) the Service Level Agreement, from time to time due to technical, commercial or regulatory requirements, provided that the Company shall provide the Customer with at least 30 days prior written notice of any material change to the Service Information and/or the Service Level Agreement.
9 Termination Fee
9.1 The Customer shall be liable to pay the Termination Fee to the Company in accordance with the General T&C or the MSA (as applicable), which represents the agreed reasonable pre-estimate of the liquidated damages suffered by the Company:
(a) a lump sum equal to the remaining balance of the total monthly Recurring 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 applicable then-current Service Initial Term or Service Renewal Term (as the case may be) in which the Service is terminated; and
(b) liabilities, if any, imposed on the Company by any Third Parties, such as local exchange carriers or telecommunication service carriers, as a result of the Customer's early termination.
9.2 Any provision of these Service Terms which by its context is intended to apply after termination of these Service Terms, shall survive its termination.
10 Customer's Obligations
10.1 The Customer shall:
(a) provide the Company with all reasonable co-operation in relation to the installation of the Service at the Customer's own cost and expense, including:
(A) accurate completion of an Order Form containing detailed demarcation information and other onsite contact listings, and completion of the necessary technical questionnaires provided by the Company; and
(B) all reasonable preparation of the Sites and such other relevant Customer or Third Party premises for the supply of the Service and otherwise to comply with the Company’s installation specifications for the Service;
(b) at all reasonable times permit full and free access to the Sites and to such other relevant premises and equipment as the Company and the Company’s Personnel reasonably require to install, test, operate, maintain and otherwise perform the Service, including arranging access to any of the rights-of-way, conduits and equipment space necessary for the Company to provide the Service to the Sites;
(c) provide all necessary assistance to enable location and rectification of any Service Level Failure (as defined in the Service Level Agreement) regardless of whether that fault is the responsibility of the Company or any Third Party;
(d) co-operate with the Company and provide the Company with any information that is reasonably requested in the performance of the Service, and ensure that such information is accurate in all material respects; and
(e) take any steps reasonably necessary to ensure the safety of the Company's Personnel when attending the Sites and any other Customer or Third Party premises.
10.2 Other than as set forth in Clause 10.1 above, the Customer will, if applicable, provide the necessary equipment, protective apparatus, space, conduits, ventilation, air conditioning and electrical power required to operate and maintain the facilities used to provide Service to the Sites without charge or cost to the Company in accordance with the Company’s specifications. The space, conduits and power will be made available to the Company, its Affiliates and/or Third Party Providers (as the case may be) on a timely and reasonable basis. The Customer will be responsible for maintaining the equipment space and associated facilities, conduits and rights-of-way as safe places to work, which are insured against fire, theft, vandalism and other casualty. The Customer shall carry out adjustments, modifications, alterations, repairs or replacements at its own expense to any equipment when so required by the Company. The Customer will also be responsible for ensuring that the use of the equipment space and associated facilities, conduits and rights-of way comply with all applicable laws, governmental rules and regulations as well as any provisions of any Agreement, provisions of any other agreement between the parties, and any reasonable rules that the Company imposes uniformly in good faith on all users of the Company’s facilities and services provided that in no case shall such rules materially adversely affect the Customer’s access to or enjoyment of the Service provided in accordance with an Agreement.
11 Network Maintenance
11.1 Scheduled Maintenance
(a) The Company may arrange for Scheduled Maintenance on the Company's Network in terms of the Service, and shall use reasonable endeavours to notify the Customer of all Scheduled Maintenance on the Company's Network that may affect the Customer's receipt of the Service no less than 5 Business Days in advance, including the start date, estimated duration of the maintenance and Planned Outage Time.
(b) The Company shall finish the maintenance promptly, and will provide the Customer with notification by e-mail that the Scheduled Maintenance has commenced and similar notification upon completion.
(c) The Customer shall be informed of any deviation against Scheduled Maintenance and potential impact on the Customer's receipt of the Service.
11.2 Emergency Maintenance
In case of any Emergency Maintenance, the Company shall notify the Customer as soon as possible and provide the Customer with regular status updates. In such event, the Company shall take all commercially reasonable measures to minimize the impact and outages to the Service.