KDDI Euro Web TERMS &
CONDITIONS
1. SERVICES
1.1 When KDDI
Europe Limited (who are known in these Terms as “KDDI” and “we”) accepts the
KDDI Order Form (the “Order Form”), we will provide you with the services
described in the attached Service Menu (the “Services).
1.2 These terms do
not cover any other services.
1.3 KDDI may vary these Terms by providing
notice to you. If you decide to use the Services after we have sent you notice
of a variation in these Terms, you will be deemed to have agreed to and will be
subject to these terms and conditions as varied. Notice may be provided with
your bill or by direct mail, e-mail or by other means.
1.4 The provision of
the Services may be subject to restrictions based on laws and regulations in any
relevant country.
2. EQUIPMENT
2.1 We will install, operate and
maintain at your premises equipment necessary for the provision of the Services
(the “Equipment”). You shall provide, without charge or cost to us, appropriate
equipment space, environment, ducting and electrical power to install and
maintain the Equipment at your premises.
2.2 KDDI shall not bear the cost of
any damage caused to land, buildings or other structures belonging to you during
the installation, removal or relocation of, or repair work on, the Equipment by
KDDI.
2.3 You shall co-operate with KDDI for this purpose and shall allow
anyone accredited by KDDI access to your premises whenever necessary.
2.4
Whilst the Equipment is on your premises (or the premises of any of your
customers), you shall ensure that it is kept safe and secure and is not
interfered with by any person.
2.5 You agree that title in the Equipment
shall at all times remain with us. On termination of this agreement, you will
ensure that we are allowed prompt access to all relevant premises to remove the
Equipment.
2.6 You shall have possession of the Equipment as bailee and shall
keep the Equipment in good storage facilities and in such a way as to enable the
Equipment to be readily identified as the property of KDDI. If you fail to
effect any payments due to us in full under this agreement, then we (without
prejudice to any other legal remedies we may have) shall at any time after that
be entitled to enter any of your sites (without notice to you) and remove the
Equipment. You grant us access to any of your sites for such
purposes.
3. ANTI-VIRUS SECURITY
Subject to the limitation of liability described in condition 12, KDDI’s
e-mail servers will be equipped from time to time with Trendmicro anti-virus
technology. However, you understand that it is not possible for KDDI to
guarantee the security of your communications.
4. PASSWORD
Where KDDI provides you with
a password in accordance with the relevant Service Menu, you will be solely
responsible for the security and proper use of such password and must take all
necessary steps to ensure that such password is kept confidential, secure and
that it is used properly and not disclosed to third parties.
5. YOUR
OBLIGATIONS
5.1 RFC conformity: You will comply with all relevant
policies, protocols and standards on acceptable use, including but not limited
to RFC documents and any other applicable standards that may come into force
from time to time.
5.2 Compliance: You will comply with these Terms, any
reasonable instructions that we give you relating to the use of the Services and
any applicable laws and regulations.
5.3 Third party rights: You will not
infringe the rights of any third party (including, without limitation, by
defamation or by infringement of intellectual property rights) nor cause
annoyance, menace or inconvenience to any other persons.
5.4 Network and
Services maintenance: You will not transmit, store, facilitate or knowingly
receive computer viruses or other material which may interrupt or damage the
Services, render the Services less functional or less effective, or cause any
damage or interruption to KDDI's network. KDDI reserves the right to delete any
such data/information without advanced notice in cases where we have reasons to
believe that you are in breach of this condition 5.4.
5.5 Profligate use:
Unless otherwise established in the applicable Service Menu or accepted in
written by KDDI, you shall not make live video/audio transmissions or IP
multicasts or make any other profligate use of the Services.
5.6 Simultaneous
logins: Where a dial-up service is provided, you shall not make simultaneous
logins with the same account.
5.7 Access and safety: If we supply you with
any Equipment, you shall allow KDDI engineers and authorised personnel access to
all appropriate sites at mutually agreeable times. Both parties shall each meet
the other's reasonable requirements about the safety of your and our respective
people on your premises.
5.8 Works authority: You agree, and shall ensure,
that we have the authority to carry out works to provide you with the Service at
any of your sites in connection with the Service.
5.9 Indemnity: You will
indemnify KDDI against any claims, losses, damages, costs, liabilities and
expenses (including, without limitation, legal costs and expenses) resulting
from any breach of your obligations under these Terms, the applicable Service
Menu(s) or any other relevant document or unauthorised use or misuse by you of
the Services.
5.10 Payment: You will be responsible for paying KDDI all sums
due, even if you leave the UK or after cancellation or termination of these
Terms.
5.11 Your contact details: You must promptly tell us about any change
to your name, your bankers (if you have offered to pay by direct debit), your
credit / debit card, your contact telephone number and your address to which we
send your invoices. You hereby confirm that the details you provide to KDDI are
true and accurate as at the date you provide them to us. You agree that a
breach by you of this condition 5.11 will constitute a material breach of these
Terms including, without limitation, for the purposes of condition
14.1(a).
6. RESPONSIBILITY FOR CONTENT AND DAMAGES
6.1 We
shall bear no responsibility of any kind for the content of information
transmitted or received through the KDDI network.
6.2 If damage is caused to
the Services, KDDI’s network, or to a third party (through the use of Services),
you will take full responsibility to KDDI for the damage incurred.
7. MINIMUM SERVICE PERIOD
7.1 The minimum service period is
described in the applicable Service Menu.
7.2 This minimum service period
shall not prevent KDDI from exercising its rights to suspend use of the Services
or terminate this agreement.
7.3 Unless we receive written notice of
termination more than 3 months in advance, this agreement shall be automatically
renewed on an annual basis.
8. RETURN OF IP ADDRESS AND
EQUIPMENT.
8.1 Upon cancellation or termination of these Terms by
whatever reason, you will return without delay the Equipment, the IP address
and/or the mail account under the domain of KDDI allocated by
KDDI.
8.2 Unless otherwise established in the applicable Service Menu, you
will be responsible for any damage caused to the Equipment during the term of
this agreement.
9. OUR CHARGES
9.1 Advance payment: You will
make advanced payment for the charges of the Services as described in the
relevant Service Menu. You must pay us the total invoiced sum on or before the
due date specified on the invoice.
9.2 Our right to charge interest: We will
be entitled to charge interest on any amounts not paid by you when due,
calculated at 2% over the then prevailing base lending rate of Barclays Bank
plc. Interest is calculated and accrues daily.
9.3 Late payment: If in any
month you do not pay the invoiced amount when due, you agree that we may debit
your credit card with the amount due to us.
9.4 Form of invoices and no
set-off: Our invoices will include a full description of the Services. You will
have no right to offset, deduct or withhold payment of our charges for any
reason whatsoever.
10. DATA PROTECTION
10.1 You authorise KDDI
to use personal information, as set out in the Order Form and as defined in
condition 10.2, to disclose your personal information to KDDI’s agents, related
companies, credit reporting agencies, credit providers, carriers, carriage
service providers, business referees, employers and relevant regulatory
authorities in accordance with the Data Protection Act for the following
purposes, which are also set out in the Order Form:
(a) considering or
applying KDDI’s credit policy to your application for the Services or new KDDI
services;
(b) administration and management of your account, including
collection of overdue payments;
(c) maintenance of credit records about
you;
(d) marketing of other KDDI Services; and
(e) investigating and
pursuing lost or stolen cards or unauthorised use of your card once you have
reported any loss or theft of your card.
10.2 “Personal information”
referred to in condition 10.1 includes:
(a) your name, addresses, date of
birth and national insurance card number;
(b) details and status of any of
your accounts with KDDI or its related companies;
(c) your credit history,
including any instances of credit defaults, dishonoured cheques or credit
infringements; and
10.3 From time to time KDDI may ask you to review and
update the personal information it holds (although you are welcome to review and
update the information more or less frequently as you wish).
10.4 As KDDI is
part of a larger group of companies operating internationally, we will from time
to time also make available to other related companies of KDDI and to the
parties listed in condition 10.1, which may be located within Europe, Asia,
Australia, and the Americas, information relating to KDDI’s operations,
including the personal information you have provided in order to facilitate
management and global administration of the Services.
11. NETWORK
CONNECTION
11.1 KDDI’s prior consent shall be required in the event that
you intend to connect your network to other network(s).
11.2 Further, if you
intend to connect your network to other Internet Service Provider networks
directly or indirectly, you will be required to pay to KDDI the Border Gate
Protocol configuration costs or other relevant costs.
12. WARRANTIES
AND LIMITATION OF LIABILITY
12.1 We will use reasonable skill and care to
provide you with the Services. However, we do not guarantee the continuous
availability or quality of the Services or the security of your communications.
We do not run a compensation scheme for failures in the Services. We will try to
correct any failures in the Services as soon as reasonably
practicable.
12.2 We will not be liable for any failure in performance of the
Services for reasons beyond our reasonable control including but not limited to
default or failure of a third party (including any third party public
telecommunications operator or service provider), government actions, failure in
the supply of a third party’s access line or other event of force
majeure.
12.3 Without prejudice to condition 12.4, and notwithstanding the
unenforceability or invalidity of any other provision in this agreement, our
maximum aggregate liability to you arising out of or in connection with this
agreement, or any collateral contract, whether in contract, tort (including
negligence) or otherwise, shall in no circumstances exceed the sums we have
received from you in the 12 months prior to the event said to give rise to the
liability in question.
12.4 Nothing in these terms is intended to exclude or
restrict or shall have the effect of excluding or restricting any liability on
the part of KDDI for fraud or for death or personal injury resulting from its
negligence.
12.5 We will not be liable under or in connection with these
Terms for any loss of income, data, profit, revenue, business or contracts or
any indirect or special loss or damage of any kind howsoever arising and whether
caused by tort (including negligence), breach of contract or
otherwise.
12.6 These Terms and any other document or notice referred to in
these Terms sets out the full extent of our obligations and liabilities in
respect of Services. Any condition, warranty or other term concerning the
Services which might otherwise be implied into or incorporated into these Terms,
whether by statute, common law or otherwise, is hereby excluded. You will have
no remedy in respect of any untrue statement made to you upon which you relied
in entering into these Terms (unless such untrue statement was made
fraudulently) and your only remedy shall be for breach of contract as provided
in these Terms.
THE LIMITATIONS ON OUR LIABILITY UNDER THIS CONDITION 7 DO
NOT AFFECT YOUR RIGHTS, WHETHER UNDER STATUTE OR OTHERWISE, AS A CONSUMER IN THE
UK.
13. SERVICE DISRUPTION
13.1 If, for reasons that cannot be
attributed to you, the Services become inoperative for a continuous period of at
least 24 hours from the time when KDDI is notified of this fact until the time
when all concerned parties have mutually confirmed that the Services are
operational again, KDDI shall, at your request, refund the charges for the
period when the Services were inoperative.
13.2 The amount of any refund of
the charges under condition 13.1 will be calculated by multiplying the number of
hours for which the Service was inoperative (discarding units of less than 30
minutes and counting units of 30 minutes or more as whole hours) by the hourly
usage charge.
13.3 KDDI will not accept any request for the refund of the
charges under the provisions of condition 13.1 after 6 months have elapsed from
the date on which the grounds for the refund arose.
14. SUSPENSION OR
TERMINATION OF THE SERVICES
14.1 In addition to any other right or remedy
we may have under these Terms or otherwise, we reserve the right to suspend or
terminate the Services at anytime without prior notice. KDDI will suspend or
terminate at our absolute discretion which may be for the reasons outlined below
(but not limited to) :
(a) if you materially breach these Terms or any other
terms and conditions you may have with us which for the avoidance of doubt
includes late or non-payment of any of our charges; orr
(b) if bankruptcy or
insolvency proceedings are brought against you; or
(c) if KDDI judge that
your use of the service is affecting the quality of the service.
14.2 Upon
suspension or termination of the Services (in whole or part) sums owing in
respect of the Services shall be due and payable to KDDI in full upon demand.
14.3 KDDI shall not bear any liability for any damage incurred as a result
of the suspension or termination of the Services.
14.4 You will not be
exempted from liability for breach of these Terms, the applicable Service
Menu(s) or any other relevant document after the termination of the
Services.
15. NOTICES
15.1 KDDI’s address for the service of
notices is Atlas House, 1 King Street, London EC2V 8AU. Your address for service
shall be at the address you have asked us to send bills. Either you or we, by
written notice to the other, may substitute another address in England, which
shall then become the address for service of notices.
15.2 Any notice given
in connection with these Terms shall be served in writing by
either:
(a) postal delivery by first-class post or prepaid recorded delivery
to the address given in condition 15.1;
(b) e-mail delivery to the e-mail
address registered at time of application for the service;
(c) As specified in our website “KEW Member’s Room” which can be found
at www.eu.kddi.com.
15.3 Unless otherwise stated in these Terms, any notice
served by the method specified in 15.2 shall be deemed duly served 48 hours
(disregarding days which are bank holidays) after publishing.
16. GENERAL
16.1 In the event of a discrepancy between the
Terms and the relevant Service Menu, the Service Menu will prevail.
16.2 You
cannot transfer or try to transfer your rights or obligations in relation to the
Services to anyone else without our prior written consent. However, we may
transfer our rights and obligations in relation to the Services at any
time.
16.3 You promise that the person signing on your behalf is authorised
to do so.
16.4 If any provision or part of a provision of these Terms shall
be, or be found by any authority or court of competent jurisdiction to be,
invalid or unenforceable, such invalidity or unenforceability shall not affect
the other provisions or parts of such provisions of these Terms, all of which
shall remain in full force and effect.
16.5 No delay or omission by us to
exercise or take advantage of any right, power or privilege that we have or may
have under these Terms shall operate as a waiver of any right, power or
privilege by us. Also, the waiver by us of a breach or default of any provision
of these Terms by you shall not be taken as a waiver of any succeeding breach of
the same kind or any other provision.
16.6 If you have a query regarding
the Services you may contact our Customer Services Centre on 0800 631 31
31.
17. GOVERNING LAW AND JURISDICTION
These Terms are governed
by and construed in accordance with English Law and the parties submit to the
exclusive jurisdiction of the English Courts for the purposes of enforcing any
claim arising under these Terms without prejudice to KDDI’s right to bring
proceedings in any other court of competent jurisdiction.
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