These are the GENERAL TERMS AND CONDITIONS (“General Terms and Conditions”) on which KDDI Europe Limited (“KDDI”) will provide services to the customer (“Customer”) as identified on the relevant Service Application Form (KDDI and the Customer are collectively referred to hereinafter as the “Parties” and individually referred to as a “Party”) under each Contract.
1.1 In these General Terms and Conditions, where the context so admits, the following words and expressions have the following meanings, except where expressly indicated otherwise:
|“Authorised User”||Means a person, company or any other entity authorised by Customer to communicate utilising KDDI’s services.|
|“Business Day”||Means a weekday excluding the local public holidays.|
|“Charges”||Means the charges for the Services as set out in the Service Application Form.|
|"Confidential Information"||Means in relation to either Party, information (whether in oral, written or electronic form) belonging or relating to that Party, its business affairs or activities which is not in the public domain and which: (i) either Party has marked as confidential or proprietary, (ii) either Party, orally or in writing has advised the other Party is of a confidential nature, or (iii) due to its character or nature, would lead a reasonable person in a like position to the recipient, and under like circumstances, to treat it as confidential. For the avoidance of doubt, the details of any Contract (but not of these General Terms and Conditions) including pricing and other Specific Terms and Conditions shall be considered Confidential Information.|
|“Contract”||Means a contract for the supply of Services between KDDI and Customer, consisting of these General Terms and Conditions together with the relevant completed Service Application Form accepted by KDDI under Clause 2, the Service Description and the Specific Terms and Conditions referred to on that Service Application Form.|
|“Customer Equipment”||Means the ICT equipment belonging to the Customer that is subject to maintenance and support by KDDI as part of a managed Service.|
|“Customer Requested Delivery Date”||Means the requested date for delivery as set out on the relevant Service Application Form, or failing that, such other delivery date as may be agreed between the Parties.|
|“Data Protection Legislation”||Means the Data Protection Act 2018 and the General Data Protection Regulation (GDPR) 25 May 2018, and any applicable analogous legislation in any jurisdiction from time to time.|
|“Equipment”||Means the telecommunications equipment, including but not limited to routers and switches, that KDDI provides to the Customer as part of a Service on a rental basis|
|“Event of Force Majeure”||Means any causes beyond the reasonable control of a Party which prevents it from being able properly to perform its obligations under a Contract, including , but not limited to, acts of God; acts of government or governmental authorities; compliance with law, regulation or orders; fire, storm, flood or earthquake; war (declared or not), rebellion, revolution, or riots; strikes or lockouts, technological/cyber-attack (including but not limited to denial of service attacks, attacks involving malicious code and computer hacking).|
|“Group”||Means, in relation to any company, any other company which at the relevant time is a subsidiary or a holding company or which is a subsidiary of any holding company from time to time or which is a group undertaking, where “subsidiary” and “holding company” have the meanings given in section 1159 and schedule 6 of the Companies Act 2006 and where “group undertaking” has the meaning given in section 1161/2 of the Companies Act 2006.|
|“Initial Term”||Means in relation to each Contract the initial duration of such Contract (from actual delivery date) as specified in the Service Application Form. If no period is specified then the Initial Term shall be one year.|
|“Issue Date”||Means the date that a document, including but not limited to an invoice, is ready for release to the Customer, such date being printed on the document.|
|"MSA Offence">||Means an offence under the UK's Modern Slavery Act 2015 or any analogous legislation as amended from time to time.|
|"MSA Policy and Statement"||Means the Customer’s modern slavery and human trafficking policy (if applicable) as set out in its compliance policy, and modern slavery act statement as published on Customer's website (if applicable).|
|“Schedule”||Means an appendix to the Service Application Form which shall be part of a Contract and which shall provide additional terms and conditions specific to a particular Contract.|
|“Service Application Form”||Means a duly completed and executed KDDI Service Application Form for the supply of Services issued by Customer.|
|“Services”||Means the services to be supplied by KDDI as described in the relevant Service Application Form.|
|“Specific Terms and Conditions”||Means the Service-specific terms and conditions as attached to or referred to on the relevant Service Application Form|
|“Service Commencement Date”||Means the date on which the Services will start provisionally set as the Customer Requested Delivery Date specified in the Service Application Form.|
|“Service Description”||Means a description of the technical and procedural details and other information with respect to the Services covered by the Contract.|
|“Termination Date”||Means the date on which the Services will terminate pursuant to ninety (90) days written notice by one Party to the other, or as otherwise agreed in writing between the Parties.|
1.2 Clause headings are purely for ease of reference and do not form part of or affect the interpretation of these General Terms and Conditions.
1.3 In the event of a conflict between these General Terms and Conditions and the provisions of other documents related to the Contract, the order of priority will be as set out below, with the lowest-priority documents listed first:
1.3.1 these General Terms and Conditions;
1.3.2 the relevant Specific Terms and Conditions
1.3.3 the Service Description; and
1.3.4 the Service Application Form
1.4 KDDI reserves the right to change these Terms from time to time on providing the Customer with at least thirty (30) days prior written notice, and provided that such change does not materially affect any applicable Service. Any Change to the Charges may only be effected in accordance with clause 7.7. KDDI may also change any Service to comply with any applicable law, regulation or code of conduct or any change to any of the same and shall give the Customer as much notice as is reasonably practicable under the circumstances.
■2. Formation of a Contract
2.1 A legally binding contract, in the form of the Contract, is formed only when both:
2.1.1 Customer has signed two copies of the relevant Service Application Form and sent them both to KDDI; and
2.1.2 KDDI has itself signed one and returned it to Customer.
2.2 For the avoidance of doubt, KDDI may, at its sole discretion, reject any Service Application Form,in which case no Contract will be formed.
3.1 Lead time shall be subject to discussion with the Customer and shall be arranged once KDDI accepts the Service Application Form signed by the Customer.
3.2 KDDI will use reasonable endeavours to commence the Service on the Customer Requested Delivery Date.
3.3 KDDI will provide the Services as set out in the Service Application Form, Service Description and/or Specific Terms and Conditions.
4.1 The Service will begin on the Service Commencement Date and, subject to clause 5, will continue throughout the Initial Term.
4.2 Unless otherwise specified, the Initial Term will be a period of twelve (12) months from the Service Commencement Date. Upon the expiration of the Initial Term, the Contract will renew automatically for further successive twelve (12) month terms (“Renewed Term”).
5.1 Either Party may terminate a Contract by giving the other Party at least ninety (90) days written notice and such termination shall be effective on the date of the expiry of the Initial Term or any Renewed Term, unless agreed otherwise in writing between the Parties.
5.2 Either Party may terminate any Contract immediately by giving notice in writing to the other:
5.2.1 if that other Party commits a material breach of the terms of the Contract and (if the breach is capable of remedy) fails to remedy the breach within thirty (30) days after receipt of written notice by the other requesting it to do so;
5.2.2 if the other Party makes an arrangement or composition with its creditors generally or makes an application to a court of competent jurisdiction for protection from its creditors generally or a resolution is passed by it for its winding up, a court of competent jurisdiction makes an order for its winding-up or dissolution, an administration order is made in relation to it or a receiver or administrative receiver is appointed over or a person legally appointed to do so takes possession of or sells any of its assets or it undergoes any analogous insolvency event under the laws of its country of incorporation;
5.2.3 if for regulatory reasons KDDI is or becomes unable to provide the Services; or
5.2.4 if an Event of Force Majeure continues for more than three (3) months.
5.3 If the Contract (or the applicable portion thereof) is terminated for any reason, then all accrued but unpaid charges incurred by Customer shall become due and owing as of the effective date of termination. In addition to the foregoing, if
5.3.1 Customer terminates the Contract (or the applicable portion thereof) prior to the expiration of the Initial Term or Renewed Term of the Contract for reasons other than those specified in Section 5.2.1 or 5.2.2 or 5.2.3 above, or
5.3.2 KDDI terminates the Contract (or the applicable portion thereof) under Sections 5.2.1, 5.2.2 or 5.2.4, then Customer shall pay to KDDI the following sums which shall become due and owing as of the effective date of such termination:
(i) all charges reasonably expended by KDDI to establish service to Customer;
(ii) all disconnection, early cancellation and termination charges reasonably incurred and paid to third parties by KDDI on behalf of Customer; and
(iii) a total of one hundred (100) percent of all recurring service charges for the remainder of the Initial Term or Renewed Term of the Contract.
5.4 KDDI shall be entitled immediately to suspend any Contract on giving notice to the Customer in the event that it is entitled to terminate that Contract and any exercise of such right of suspension shall not prejudice KDDI’s right subsequently to terminate that Contract.
5.5 The exercise by KDDI of any right to terminate a Contract is without prejudice to any other rights or remedies which KDDI may have against Customer whether under the terms of a Contract or otherwise.
5.6 After receiving the termination notification from the Customer, KDDI shall send the Customer confirmation of the service termination. If they have not received this confirmation from KDDI, the Customer should contact the KDDI Sales Representative.
■6. Establishment and Re-establishment of Credit
6.1 KDDI will conduct a credit investigation of each new Customer. A Customer whose service has been discontinued for non-payment of bills will be required to re-establish credit before service is restored.
6.2 KDDI may require a Customer to make an advance payment before Services and Equipment are furnished. The advance payment will not exceed an amount equal to any applicable non-recurring charges(s) and one month's charges for the contracted service or facility. In addition, where special construction is involved, the advance payment may also include an amount equal to the estimated non-recurring charges (if any) for a period to be set between KDDI and the Customer. The advance payment will be credited to the Customer's initial bill. An advance payment may be required in addition to a deposit.
7.1 Customer must pay the Charges as set out in the Service Application Form. The currency will be that specified on the Service Application Form.
7.2 Unless otherwise stated on the Service Application Form or the Specific Terms and Conditions:
7.2.1 Following the Service Commencement Date, KDDI will issue invoices quarterly, with all fixed Charges (including, without limitation, all the monthly recurring charges) payable in advance and all other charges payable in arrears; and
7.2.2 The first invoice shall cover the following:
(i) all of the one-off charges for the installation of the environment (e.g. engineering fee for Line and rental equipment, extra configuration fee, and optional service if necessary).
(ii) and the recurring charge (e.g. Line, rental equipment, and optional service if necessary) for the first period. KDDI shall thereafter issue the invoice on a quarterly basis.
7.2.3 Customer shall pay each invoice issued by KDDI within thirty (30) days of the Issue Date of that invoice.
7.3 All Charges are, unless otherwise stated, exclusive of VAT and other applicable taxes and duties. Customer shall pay all such taxes and duties payable with respect to the Services. Where KDDI has the legal obligation (independent of these General Terms and Conditions) to collect such taxes, the appropriate amount shall be added by KDDI to Customer’s invoice and paid by Customer unless Customer provides KDDI with a valid tax exemption certificate authorised by the appropriate taxing authority. If Customer is obliged to withhold any such tax then the amount payable by Customer shall be increased so that after such withholding or deduction the amount receivable by KDDI is the sum which would have been payable but for the obligation to withhold unless Customer supplies KDDI with all necessary documentation at the time of payment to allow KDDI the full benefit of such withholding. Customer shall co-operate with KDDI and shall provide KDDI with certificates or receipts issued by the appropriate taxing authority.
7.4 If Customer disputes any invoice, then it shall notify KDDI within thirty (30) days of the Issue Date of that invoice and may withhold any bona fide disputed amount pending resolution of the dispute. The Customer must pay the undisputed amount in full and on time.
7.5 Notwithstanding notification of a dispute over charges, if any payment becomes overdue then KDDI may, without prejudice to its other rights, charge simple daily interest equivalent to an annual rate of 2% above the base rate of the Royal Bank of Scotland plc from time to time on sums owing from the date when payment was due until the date that the invoicing Party receives payment of all sums outstanding including accrued interest. No interest shall be payable on any disputed amounts that are ultimately found (by a final court of competent jurisdiction) not to be payable.
7.6 Neither Party may off-set any amount claimed against the other for any amount owed by the other. Notwithstanding, KDDI may off-set the amount of any overdue invoice which is not subject to a bona fide dispute against any credits which KDDI may owe to Customer.
7.7 KDDI shall have the right to increase the Charge to an amount that has been mutually agreed between the Parties prior to the expiry of the Initial Term or any Renewed Term and such amended Charge to be effective from each anniversary of the Service Commencement Date.
7.8 For the avoidance of doubt, non-payment of the undisputed part of any invoice in full and on time may be a material breach resulting in termination of a Contract by KDDI under clause 5.2.
8.1 Customer must ensure that all facilities, services, utilities and equipment reasonably required by KDDI (collectively, “Facilities”) are in place and functional on or before the Customer Requested Delivery Date and remain in place and functional throughout the Term. All such Facilities must be duly authorised or approved for use in connection with the Service in the applicable jurisdiction.
8.2 In no event shall KDDI be responsible for any damage, delays or difficulties with the Services caused by or arising in connection with the Facilities. In case the Customer causes damage to KDDI arising from or in connection with the Facilities, the Customer shall pay and compensate for such damage. As a result of problems with the Facilities, which may affect the Services, KDDI may charge the Customer, and the Customer shall pay at KDDI’s then-current time and materials rate, for any extra time spent as well as for any third party costs or charges incurred.
8.3 KDDI is not responsible for any breaches of security affecting equipment under the Customer’s control whether it be Customer Equipment or KDDI Equipment. If the Customer's Equipment or KDDI Equipment is affected by an attack on another server or system, it will be shut down and an immediate investigation will be launched to determine the cause/source of the attack. In such cases, the Customer is solely responsible for the cost to rectify any damage done to Customer's Equipment and any other requirement affected by the security breach. The labour used to rectify any such damage is categorised as emergency security breach recovery and is charged on an hourly basis.
■9. Repair or Restoration of Facilities and Equipment
9.1 Customer shall report any interruption in service or malfunction which Customer reasonably believes is the result of some failure in KDDI's facilities or Equipment, and Customer shall request KDDI to remedy the malfunction.
9.2 When KDDI determines that a malfunction has occurred in its facilities or Equipment, KDDI shall endeavour to repair or restore the facilities or Equipment without delay or in accordance with any applicable Service Level Agreement (“SLA”).
9.3 When KDDI dispatches an engineer at the request of Customer, who reports a service interruption or malfunction pursuant to Section 9.1 above, and it is proved that the malfunction has arisen from Customer-provided terminal equipment and facilities, the Customer shall pay for the cost of the dispatch and may be charged for all other reasonable expenses incurred by KDDI in resolving the reported service interruption or malfunction.
■10. Alterations to Terminal Equipment Resulting from Alterations to KDDI’s Facilities
10.1 In the case where alterations have been made to KDDI's facilities (including technical standards, requirements, and specifications), and it becomes necessary to modify or alter Customer-provided terminal equipment (excluding terminal Equipment installed by KDDI), Customer shall be responsible for completing such modifications or alterations. KDDI shall notify Customer of the required alterations, and the Customer should endeavour to complete the necessary modifications within thirty (30) days of such notice.
■11. Obligations of Customer
11.1 Customer shall:
11.1.1 allow KDDI, or its officers, agents, employees or sub-contractors, reasonable access to any sites or facilities owned or controlled by Customer (“Premises”) for any reasonable purpose in connection with the Services, including without limitation for the purpose of inspecting any KDDI Equipment located on the Premises and for the purpose of removing such Equipment on expiry or termination of the Contract;
11.1.2 use reasonable care to protect any Equipment provided by KDDI and located on the Premises from damage, and will not permit others to, move, disconnect, connect, adjust, alter or tamper with any such Equipment without KDDI’s express consent;
11.1.3 be responsible for the damage to or loss of KDDI's facilities or Equipment caused by the acts or omissions of, or the noncompliance by Customer or Authorized Users with these regulations, including damage or loss by fire, theft or other casualty occurring on the Customer's premises, unless caused by the negligence or wilful misconduct of the employees or agents of KDDI.
11.1.4 bear any required costs associated with replacement, repair, or other installation works when non-compliance with the provisions of Sections 11.1.2 or 11.1.3 above has led to loss of, or damage to KDDI’s facilities or Equipment.
11.1.5 pay charges for the use of KDDI’s facilities or Equipment, when KDDI has installed and made the facilities or Equipment available for use.
11.1.6 pay the charges during the period of suspension even when the use of KDDI’s facilities or Equipment has been suspended under the provisions of Section 5.2.1 or 5.2.2.
11.1.7 be responsible to KDDI for all charges incurred by its Authorised Users;
11.1.8 Take out and maintain suitable insurance to cover the Equipment against the risk of any damage or loss except when caused by KDDI, its employees, agents or contractors; and
11.1.9 obtain any necessary declarations, licences, consents or permissions required in order to receive the Services and to meet its obligations under the Contract.
11.2 The Customer agrees that, unless otherwise stated in the Service Application Form or in the Specific Terms and Conditions, title to Equipment remains at all times with KDDI. The Customer shall not take any action that causes or results in the imposition of any lien, charge, or other restriction, limitation, or encumbrance on or otherwise interferes with the ownership or intended use of that Equipment.
11.3 KDDI shall use reasonable endeavours to notify Customer twenty-four (24) hours in advance of any regularly scheduled maintenance of the Equipment that will require access to the Premises. In the event of an emergency, as reasonably determined by KDDI, the Customer shall allow KDDI immediate access to the Premises.
11.4 The Customer will be responsible for providing and maintaining, at its own expense, the proper utilities and environment for the Equipment including, without limitation, electrical power, air conditioning, heat, fire protection and security. Customer will provide a safe place to work and comply with all laws and regulations regarding working conditions on the Premises.
11.5 The Customer shall indemnify KDDI against all third party claims resulting from defacing of or damage caused to the Premises occupied by the Customer by reason of necessary works carried out to effect the installation, removal, relocation or repair of the Equipment except where such damages or losses are caused by the negligence or wilful misconduct of the employees or agents of KDDI.
12.1 If the Services include the provision to Customer of any software, then unless otherwise stated in the Service Application Form, the Service Description or in the Specific Terms and Conditions:
12.1.1 Customer is granted a non-exclusive, non transferable, non sub licensable licence to use that software solely for the purpose for which it was supplied by KDDI. The licence to use the software will terminate immediately on expiry or termination of the Contract for any reason;
12.1.2 It is the Customer’s responsibility to ensure that the software is suitable for Customer’s purposes and KDDI does not warrant that the software will be suitable for such purposes; and
12.1.3 KDDI does not warrant that the software will be free of errors or bugs, or that Customer’s use of that software will be uninterrupted.
■13. KDDI Obligations
13.1 KDDI shall: 13.1.1 provide the Services with reasonable skill and care by means of appropriately skilled, qualified and experienced personnel, exercising all due care and diligence and use generally accepted industry practices; and
13.1.2 make reasonable endeavours to provide the Services in a timely and efficient manner and in accordance with each Contract and any applicable SLA.
13.1.3 in the event of Service disruption, and in accordance with any applicable SLA make reasonable efforts to restore the Services as soon as possible from the time when KDDI is notified of this fact until the time when the Parties have mutually confirmed that the Services are operational again.
■14. The Internet and Content
14.1 To the extent that the Services include or involve transmission over the Internet, the Customer acknowledges that data transmission over the Internet is not guaranteed and that the operation of the Internet may not be error-free or uninterrupted.
14.2 The Customer acknowledges that KDDI does not monitor or exercise any editorial control over information passing over the Services, and KDDI therefore excludes all liability in regard to such information of whatever kind, including, without limitation, the accuracy or completeness of its contents, or the scrambling or loss of any information or data and the Customer agrees to indemnify KDDI for all costs, claims, damages or legal proceedings made or threatened to be made by third parties resulting from the Customer's use of the Services or manipulation or transfer of data.
■15. Use of the Service
15.1 The Customer agrees to, and shall ensure that their Authorised users to whom the Customer makes the Service available to, for the duration of any Contract:
15.1.1 comply with the terms of a Contract;
15.1.2 not use the Service for any fraudulent or unlawful purpose, nor allow others to do so;
15.1.3 not use the Service for any purposes which are offensive, indecent, obscene, menacing or defamatory nor allow others to do so;
15.1.4 comply with all applicable laws and regulatory requirements;
15.1.5 configure, connect and design the network an IT infrastructure (including the security and integrity thereof) in accordance with recognised best practice to mitigate the risk of it being a target or a source of disruptions or network defects or attacks:
15.1.6 not use the Service to gain, or attempt to gain, unauthorised access to any system (including network probing, network mapping, vulnerability scanning or exploitation of system misconfiguration);
15.1.7 inform KDDI immediately if the Customer is aware of or believes that:
(i.) any security breach has occurred in connection with the Service;
(ii.) any fraud has occurred in connection with the Customer’s Equipment or over the network and/or
(iii.) any of the passwords that KDDI has provided to the Customer have are likely to become known to any unauthorised person. In addition, the Customer shall not disclose, and shall take all necessary organisational and technical measures to prevent the disclosure, to any unauthorised person any user names, passwords, or security certificates;
15.1.8 comply with KDDI’s reasonable instructions relating to the Service from time to time;
15.1.9 only connect to KDDI’s network such equipment and/or networks that comply with all relevant laws, standards and regulatory requirements and in such a way as is appropriate for the purposes for which it is connected and so that it will not interfere with KDDI Equipment nor the equipment of KDDI’s other customers and, further, shall comply with all reasonable instructions which KDDI may issue from time to time in relation to KDDI’s network or in relation to KDDI’s Equipment or other customer’s Equipment;
15.1.10 provide KDDI access and reasonable cooperation on reasonable terms in each case, necessary for KDDI to provide the Service, including to install any of the KDDI Equipment or Customer Equipment. KDDI may request the Customer to provide written evidence of KDDI’s right to access such sites; and
15.1.11 only use Customer Equipment only in accordance with manufacturer’s instructions and ensure that the Customer’s Equipment is reasonably protected against fraud;
15.1.12 Not use the Services or any Internet connection offered by KDDI in any way that in the reasonable opinion of KDDI makes excessive use of network or computing resources of KDDI to the detriment of KDDI or other Internet users. KDDI may make or adopt codes for this purpose and the Customer agrees to comply with any such reasonable codes as KDDI may adopt from time to time and the Customer agrees to indemnify KDDI in the event of any third party claims. Furthermore in relation to the domain name registration service, country code top level domains or ccTLD's are subject to the relevant naming authorities terms, the Customer agrees to make itself aware of these. a full list can be found at ICANWIKI.ORG
15.2 Any noncompliance of the use of the Service as stipulated in clause (15.1) shall constitute a material breach of the Service and shall entitle KDDI to suspend the provision of the Service in accordance with clause 5.4 or to terminate any Contract for the Service with immediate effect in accordance with clause 5.2.
■16. Assignment, Sub-Contracting and Resale
16.1 Customer may not assign a Contract without the prior written consent of KDDI. KDDI may assign all the obligations and benefits of a Contract without consent from Customer.
16.2 KDDI may sub-contract performance of any of its obligations under a Contract to a third party without consent from Customer and may add, remove or change sub-contractors at any time. Notwithstanding, it shall not relieve itself of its obligations.
16.3 The Customer shall not, through any assignment or other transaction or series of transactions or assignments, make any of the Service(s) available by sale, grant, lease or otherwise to any third party without express written permission from KDDI.
■17. Representations and Warranties
17.1 With respect to each Contract, each Party represents and warrants to the other that:
17.1.1 it is duly organised, validly existing and in good standing under the laws of the jurisdiction of its formation;
17.1.2 the Contract constitute a legally valid and binding obligation enforceable against it in accordance with its terms, subject to any equitable defences; and
17.1.3 it is not bankrupt or insolvent and there are no proceedings pending or being contemplated by it or, to its knowledge, threatened against it which would result in it being or becoming bankrupt or insolvent.
17.2 The only express warranties given by KDDI are those specifically set forth in the Contract. Without limiting any of the foregoing, and except as expressly stated in the Contract, KDDI makes no warranty, whether express, implied, statutory, or other, as to the description, quality, merchantability, completeness, or fitness for any purpose of any Service, or as to local access, all of which warranties by KDDI are hereby excluded and disclaimed.
18.1 These General Terms and Conditions set forth the full extent of each Party’s obligations and liabilities in respect of the provision of the Services under each Contract. Any condition, warranty or other term concerning the provision of Services which might otherwise be implied into or incorporated into the Contract, or any collateral contract, whether by statute, common law or otherwise is hereby excluded.
18.2 Neither Party shall be liable under or in connection with each Contract or any collateral contract for any loss of income, loss of actual or anticipated profits, loss of revenue, loss of business, loss of contracts, loss of goodwill, loss of anticipated savings, loss of, damage to, or corruption of data, or for indirect or consequential loss or damage of any kind, in each case howsoever arising, whether such loss was foreseeable or in the contemplation of the Parties and whether arising in or caused by tort (including negligence), breach of contract, breach of statutory duty or otherwise.
18.3 KDDI is not liable for, and Customer will have no remedy against KDDI in respect of, any losses or damage caused to Customer facilities or equipment arising out of the lines, facilities or services provided by a third party engaged by the Customer (whether or not in connection with the Services), unless caused by the negligence or wilful misconduct of the employees or agents of KDDI.
18.4 KDDI shall not bear any liability for any damage incurred as a result of the suspension or termination of the Services due to a Customer breach pursuant to Clause 5.2.1.
18.5 Customer shall not be exempt from liability for breach of these General Terms and Conditions, or any other relevant document after the termination of the Services.
18.6 Nothing in these General Terms and Conditions shall operate to exclude or in any way limit either Party’s liability in connection with any Contract for: (i) fraud; (ii) death or personal injury caused by its negligence (including negligence as defined in s. 1 Unfair Contracts Terms Act 1977, as the same may be amended or superseded); (iii) breach of terms regarding title implied by s. 12 of the Sale of Goods Act 1979 as the same may be amended or superseded and/or s.2 Supply of Goods and Services Act 1982 as the same may be amended or superseded; or (iv) any other liability to the extent the same may not be excluded or limited as a matter of law.
18.7 Notwithstanding the unenforceability or invalidity of any other provision in a Contract, each Party’s liability in contract, tort (including negligence or breach of statutory duty) or otherwise arising out of or in connection with the performance of that Contract shall be limited:
18.7.1 where a monthly rental charge is stated on the Service Application Form, to twelve (12) times that monthly rental charge; and
18.7.2 where no such charge is so-stated, then to the amount paid or payable by Customer to KDDI during the first twelve (12) months of the Contract.
■19. Force Majeure
19.1 Neither Party shall be liable for any breach of its obligations due to circumstances beyond its reasonable control, including but not limited to political/social disturbances or natural calamities such as damage by storm, flood, earthquake or fire, but excluding the payment of Charges by the Customer for the Service (s) duly provided by KDDI before or during the Event of Force Majeure unless it can be reasonably demonstrated otherwise by the Customer.
19.2 A Party whose performance of its obligations under the Contract is delayed or prevented by an Event of Force Majeure shall:
19.2.1 notify the other Party of the nature, extent, effect and likely duration of the circumstances constituting the Event of Force Majeure Event as soon as reasonably practicable; and
19.2.2 after cessation of the Event of Force Majeure, as soon as reasonably practicable notify the other Party thereof and resume full performance of its obligations under the Contract.
19.3 Both Parties shall work together in good faith to resolve the situation as quickly as possible. If a default due to an Event of Force Majeure continues for more than three (3) months, then the Party not in default shall in accordance with clause 5.2 be entitled to terminate the Contract, wholly or in part . KDDI shall have no liability to the Customer in respect of the termination of a Contract as a result of an Event of Force Majeure.
■20. Relationship of the Parties
20.1 KDDI and Customer are independent contractors. Neither Party shall be deemed or construed, whether by virtue of a Contract or otherwise, to be the agent, employee, representative or partner of the other.
20.2 Neither Party is authorised to act for, bind or otherwise create or assume any obligation on behalf of any other, and no Party shall hold itself out as having authority to do the same.
■21. Intellectual Property
21.1 Unless expressly stated, nothing in these General Terms and Conditions vests in or confers on Customer any right or licence in intellectual property of any kind (including without limitation in any patent, trade mark, copyright or design right, in each case whether or not registered) arising from or relating to the Services or any apparatus, system, method or idea used by KDDI or by Customer in connection with a Contract.
22.1 If any term of a Contract is found to be illegal, invalid or unenforceable under any applicable law, such term shall, insofar as it is severable from the remaining terms be deemed omitted without in any way affecting the legality, validity or enforceability of the remaining terms. The Parties agree to negotiate in good faith with respect to any such invalid or unenforceable part to the extent necessary to render such part valid and enforceable.
22.2 The Services provided by KDDI are severable. Upon expiration or termination of any Contract, the other Contracts shall continue unaffected except if and to the extent the event giving rise to termination of the first Contract also gives rise to the right to terminate other Contracts and the Party possessed of such right exercises its right to terminate one or more of the others.
23.1 The failure of any Party to enforce or to exercise at any time or for any period of time any term of or any right or remedy pursuant to a Contract does not constitute, and shall not be construed as, a waiver of such term, or right or remedy and shall not prevent any further exercise of the term, right or remedy or the exercise of any other right or remedy.
24.1 All notices, demands, requests, or other communications to be given by any Party shall be in writing and shall be deemed to have been duly given or served if sent by hand or facsimile or by registered mail to the business address which appears under each Party’s signature line on the Service Application Form. Each Party may designate by reasonable advance notice in writing a new person and/or address to which any notice, demand, request or communication may thereafter be so given, served, or sent. If notice is sent by hand, it shall be deemed to have been received on the date of delivery, provided delivery is obtained. If notice is sent by registered mail, it shall be deemed to have been received on the fifth day after it was dispatched. If notice is sent by facsimile, it shall be deemed to have been received upon day the transmission was sent.
■25. Rights of Third Parties
25.1 Unless expressly provided to the contrary in a Contract, a person who is not a Party to that agreement may not enforce any of its terms under the Contracts (Rights of Third Parties) Act 1999 and notwithstanding any term of these General Terms and Conditions and any Contract, the consent of any third party is not required for any variation (including any release or compromise of any liability) or termination of these General Terms and Conditions and any Contract.
■26. Non Solicitation
26.1 Each Party agrees that during the term of a Contract it shall not directly or indirectly solicit, or offer employment or engagement to, any of the other Party’s staff who is at the time of such action or was during a period of twelve (12) months immediately preceding such action directly involved in the provision of the Services provided pursuant to a Contract, without the other Party’s prior written agreement
27.1 No alteration to or variation of the terms of any Contract shall take effect unless made in writing and signed on behalf of each of the Parties by a duly authorised representative.
28.1 Each Party undertakes to the other that it shall:
28.1.1 maintain and treat in confidence all Confidential Information; and
28.1.2 other than to its Group companies not use, or disclose any Confidential Information to any party, other than for the purposes for which it was provided except with the written permission of the disclosing Party.
28.2 Clause 28.1 shall not apply to any Confidential Information which:
28.2.1 is in or comes into the public domain other than by default of the recipient Party; or
28.2.2 is or has already been independently generated by the recipient Party; or
28.2.3 is lawfully received by the recipient from a third party on an unrestricted basis; or
28.2.4 is in the possession of or is known by the recipient Party prior to the date on which it was disclosed by the disclosing Party.
28.3 Nothing in this clause 28 shall prohibit or restrict either Party from disclosing any Confidential Information to the extent to which the same is required to be disclosed by law, regulation, the rules of any applicable stock exchange, or pursuant to an order of a competent authority or to a professional adviser, provided the recipient provides, in the case of disclosure by law, regulation, stock exchange rules or order, the disclosing Party with reasonable written notice prior to any such disclosure and in the case of disclosure to a professional advisor that the professional advisor undertakes to treat the confidential information as confidential.
28.4 On expiry or termination of each Contract for whatever reason the recipient Party shall return to the disclosing Party (or, at the discretion of the disclosing Party, destroy) all copies of Confidential Information of the other Party which it has in its possession.
28.5 Subject to clause 28.3 Customer shall not make any press announcements or otherwise publicise any Contract or disclose its contents without the prior consent of KDDI in writing, such consent not to be unreasonably withheld or delayed.
The provisions of this clause will survive the termination or expiry of each Contract for a period of five years.
■29. Customer Data Retention
29.1 The Customer shall submit specifications (including required specifications, delivery specifications etc.), along with drawings and other technical information provided to the Customer by KDDI, or those produced by the Customer for the fulfilment of each Contract ( "Customer Technical Information”) and it shall be managed with the due care and attention of KDDI. Except for cases where KDDI deems it to be particularly necessary, KDDI shall only use the Customer Technical Information solely for the intended purpose and KDDI shall not disclose or provide it to any third parties.
29.2 If the Customer Technical Information is no longer required in the performance of a Contract or the Contract has been terminated or has expired, KDDI shall return the Customer Technical Information to the Customer or at KDDI’s discretion, KDDI shall destroy the Customer Technical Information in a secure manner within sixty (60) days of the termination or expiry of the Contract, or dispose of as otherwise agreed in writing with the Customer.
29.3 Subject to the consent of the Customer, KDDI will disclose the delivery specifications and other drawings received from the Customer to third parties, such consent not to be unreasonably withheld or delayed.
■30. Disputes and Governing Law
30.1 The Parties agree to use reasonable endeavours to resolve any dispute arising in relation to a Contract by means of direct negotiations between KDDI and Customer. Where a claim or dispute arising out of or in connection with a Contract is not settled by negotiation the Parties will refer the dispute to mediation in accordance with the then-current mediation procedures of the Centre for Dispute Resolution (CEDR).
30.2 The mediation process will be commenced by service by one Party of a written notice that the dispute is to be referred to mediation (“Commencement Notice”). The Parties will then participate in good faith in the mediation. Subject to clause 30.3 neither Party will begin legal action unless the dispute remains unresolved thirty (30) days (or such longer period as the Parties may agree) after service of the Commencement Notice.
30.3 Nothing in these General Terms and Conditions operates to exclude or restrict the ability of either Party to apply to a court of competent jurisdiction for injunctive or provisional relief.
30.4 Each Contract shall be governed by the laws of England and the Parties submit to the exclusive jurisdiction of the Courts of England provided that KDDI may commence proceedings in any jurisdiction in which Customer is incorporated, domiciled or resident.
■31. Entire Agreement
31.1 These General Terms and Conditions together with the relevant Service Application Form, Service Description and Specific Terms and Conditions constitute the exclusive statement of the agreement in relation to each Contract between the Parties. They supersede all understandings and prior agreements, whether oral or written, between the Parties in respect of the same subject matter. Each Party agrees that they did not and will not rely on any statement made by the other Party before the signature of the Service Application Form and hereby waives any remedy which, but for this clause 31, might otherwise be available to them in respect of any untrue statement (whether made innocently or negligently but not fraudulently) made before the signature of the relevant Service Application Form.
31.2 This clause 31 does not exclude any remedy in relation to any misrepresentation which was fraudulently made or which was as to a fundamental matter, including as to a matter fundamental to a Party’s ability to perform its obligations under each Contract.
■32. Service Credits
32.1 If KDDI Europe breaches any applicable service levels for which service credits accrue, the Customer may claim those service credits within thirty (30) days of the end of the month in which they accrue. The Customer must do so by sending a written request to the Sales Representative. If there is any inconsistency between the Customer’s service level data and KDDI Europe’s service level data, KDDI Europe’s data will prevail. If one event or series of connected events causes KDDI Europe to fail multiple SLAs with regard to a particular circuit, the Customer will only be entitled to claim the highest available service credit and will not be entitled to bring multiple service credit claims relating to the affected circuit. For the avoidance of doubt, in the event of multiple circuit failures, the highest service credit per circuit shall apply.
32.2 KDDI Europe will credit the Customer with the value of any valid service credit claim. If KDDI Europe does not receive a claim from the Customer within thirty (30) days of termination of any contract, the Customer shall not be entitled to claim any applicable credit.
32.3 Subject to clause 18.7, the Customer accepts that the service credits as specified in the applicable SLA are the Customer’s sole and exclusive remedy for failure by KDDI Europe to provide the Services in accordance with the terms of the contract and the parties agree that such service credits are a genuine pre estimate of the loss the Customer is likely to suffer.
■33. Data Protection
33.1 Both Parties will comply with all applicable requirements of the Data Protection Legislation.
33.2 The Parties acknowledge that for the purposes of the Data Protection Legislation, the Customer is the data controller and KDDI is the data processor (where “Data Controller” and “Data Processor” have the meanings as defined in the Data Protection Legislation). A Schedule accompanying these General Terms and Conditions (“Terms”) sets out the scope, nature and purpose of processing by KDDI, the duration of the processing and the types of Personal Data and categories of Data Subject (“Data Processing Schedule”).
33.3 Without prejudice to the generality of clause 33.1, the Customer will ensure that it has appropriate consents and notices in place to enable lawful transfer of the Personal Data to KDDI for the purposes of these Terms.
33.4 Without prejudice to the generality of clause 33.1, KDDI shall, in relation to any personal data (as defined in the Data Protection Legislation, “Personal Data”) processed in connection with the performance by KDDI of its obligations under these Terms:
33.4.1 process Personal Data only on the written instructions of the Customer unless KDDI is required by the law applicable to KDDI to process Personal Data (“Applicable Law”). KDDI shall promptly notify the Customer of this prior to performing the processing required by such Applicable Law unless that Applicable Law prohibits KDDI from so notifying the Customer;
33.4.2 ensure that it has in place appropriate technical and organisational measures to protect against unauthorised or unlawful processing of Personal Data and against accidental loss or destruction of, or damage, to Personal Data, appropriate to the harm that might result from such unauthorised or unlawful processing or accidental loss, destruction or damage and the nature of the data to be protected, having regard to the state of technological development and the cost of implementing any measures (such measures may include, where appropriate, pseudonymizing and encrypting Personal Data, ensuring confidentiality, integrity, availability and resilience of its systems and services, ensuring that availability of and access to Personal Data can be restored in a timely manner after an incident, and regularly assessing and evaluating the effectiveness of the technical and organization measures adopted by it);
33.4.3 ensure that all personnel who have access to and/or process Personal Data are obliged to keep the Personal Data confidential and take reasonable steps to ensure the reliability of any of KDDI’s personnel who have access to Personal Data; and
33.4.4 not transfer any Personal Data outside of the United Kingdom without the prior written consent of the Customer and where the Customer consents to transfer, to comply with:
(i) the obligation of the Customer under the Data Protection Legislation by providing an adequate level of protection to any Personal Data that is transferred; and
(ii) any reasonable instructions notified to it by the Customer with respect to the processing of the Personal Data.
33.4.5 assist the Customer, at the Customer’s cost, in responding to any request from a Data Subject and in ensuring compliance of its obligations under the Data Protection Legislation with respect to [security, breach notifications, impact assessments and consultations with supervisory authorities or regulators];
33.4.6 notify the Customer without undue delay on becoming aware of a Personal Data breach;
33.4.7 as soon as reasonably practical delete or return [or render anonymised] Personal Data and copies thereof to the Customer on completion of the Services and any termination of any Contract unless required by any Applicable Law to store the Personal Data; and
33.4.8 maintain complete and accurate records to demonstrate its compliance with this clause 33 and permit the Customer, or its designated auditor, to inspect and have access to any premises (and to the computer equipment located there) at or on which Personal Data are being processed, and have access to any records kept in connection with this Agreement, for the purposes of ensuring that KDDI is complying with the terms of this Agreement (“Regulatory Assistance”), provided that the Customer provides at least five (5) Business Days’ notice to KDDI of such inspections, which shall take place during normal business hours of 9am – 5pm Monday – Friday excluding bank and public holidays in relevant countries. Customer will be entitled to receive, and KDDI will provide, up to five (5) hours of Regulatory Assistance in aggregate without further charge. Such Regulatory Assistance hours unspent in any calendar year may not be carried over to any subsequent year. For hours of Regulatory Assistance in excess of those hours in any calendar year, Customer shall reimburse KDDI for the time spent on the basis of KDDI charges then in force.
33.5 If KDDI wishes to appoint a third party to carry out any of its obligations under these Terms (in whole or in part) so that such third party is processing Personal Data on KDDI's behalf, then KDDI shall seek the Customer’s consent to the appointment of such a third party processor. If the Customer consents to the processing, KDDI shall enter into a written agreement with such third party incorporating terms which are substantially similar to those set out in this clause 33. As between the Customer and KDDI, KDDI shall remain fully liable for all acts or omissions of any third party processor appointed by it pursuant to this clause 33.
33.6 Notwithstanding the U.K no longer being a member of the European Union and the European Economic Area (“Brexit”), the terms of this clause 33 shall continue to apply and KDDI shall continue to comply with the Data Protection Legislation and all written instructions of the Customer, unless otherwise agreed by the Parties in writing.
■34. Compliance with Anti Bribery Laws
34.1 KDDI represents and warrants that:
34.1.1 in performance of its obligations under this Agreement (including any directors, officers and employees), will comply with all applicable commercial and public anti-bribery laws (“Anti- Bribery Laws”), which prohibit corrupt offers of anything of value, either directly or indirectly to anyone, including government officials, to obtain or keep business or to secure any other improper commercial advantage; and
34.1.2 it will not make any facilitation payments, which are payments to induce officials to perform routine functions they are otherwise obligated to perform.
34.2 The Customer may terminate this Agreement immediately upon written notice to KDDI if the Customer believes, in good faith, that KDDI has violated or caused the Customer to violate any Anti-Bribery Laws, or that such a violation is reasonably likely to occur.
■35. Modern Slavery Act Compliance
35.1 KDDI undertakes, warrants and represents that as far as it can reasonably be expected to know that:
35.1.1 neither KDDI nor any of its officers, employees, agents or subcontractors has:
(i) committed an MSA Offence; or
(ii) been notified that it is subject to an investigation relating to an alleged MSA Offence or prosecution under the Modern Slavery Act 2015 or any analogous legislation; or
(iii) is aware of any circumstances within its business or supply chain which are reasonably likely to give rise to an investigation relating to an alleged MSA Offence or prosecution under the Modern Slavery Act 2015 or any analogous legislation;
35.1.2 it shall comply with the Modern Slavery Act 2015 or any analogous legislation and the Customer’s MSA Policy and Statement (if applicable); and
35.1.3 its modern slavery and human rights compliance responses to the Customer’s compliance questionnaire (if applicable) are complete and accurate.
35.2 Any breach of Clause 35.1 by KDDI shall be deemed a material breach of the agreement and shall entitle the Customer to terminate the agreement in accordance with Clause 5.2.
35.3 KDDI shall take all reasonable steps to ensure that slavery, servitude, human trafficking, forced or compulsory labour, and/or child labour do not take place in its supply chains or in any part of its business (including making all necessary enquiries with its suppliers and, to the extent reasonable and practicable, other parties in the supply chain).
35.4 KDDI shall notify the Customer immediately in writing if it becomes aware beyond reasonable doubt or has strong reason to believe that it, or any of its officers, employees, agents or subcontractors have breached or potentially breached any of its obligations under this Clause 35. Such notice will set out full details of the circumstances concerning the breach or potential breach of KDDI’s obligations.