KDDI BELGIUM SERVICES - GENERAL TERMS AND CONDITIONS

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:

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. The Customer Requested Delivery Date is only indicative and not binding.

3.3 During the Term 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 or makes an application to a court of competent jurisdiction for protection from its creditors 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, all accrued but unpaid charges incurred by Customer shall become due and payable as of the effective date of termination. In addition to the foregoing, if 

(i.)      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 

(ii.) KDDI terminates the Contract (or the applicable portion thereof) under Sections 5.2.1 or  5.2.2 or 5.2.4, then Customer shall pay to KDDI the following sums which shall become due and payable as of the effective date of such termination:

a) all charges reasonably incurred by KDDI to establish service to Customer;

b) all disconnection, early cancellation and termination charges reasonably incurred and paid to third parties by KDDI on behalf of Customer; and

c) 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 to immediately 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.

6.1 KDDI will conduct a credit investigation of each new Customer. A Customer whose service has been discontinued for nonpayment 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 shall be invoiced separately ; 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 30 (thirty) 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 30 (thirty) 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 interest on an annual basis equal to the applicable interest rate according to the Belgian Act of August 2nd 2002 (Act regarding the defrayment of overdue debts with respect to commercial transactions), increased by 8%  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 Either Party may off-set any amount claimed against the other for any amount owed by the other.

7.7 Received payments shall be used as payment for the oldest outstanding claims.

7.8 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. 

7.9 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 5.2.1.

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.

9.1 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.

9.3 Assistance for repairing other systems

If KDDI diagnoses that the fault is not on the Customer Equipment, or may be due to modifications made to the Customer Equipment by the Customer or by third parties other than KDDI’s authorised third parties, KDDI will use reasonable efforts to assist the Customer to carry out the repair. In such cases, KDDI shall not be responsible for the completion of the repair work. The Customer should provide any relevant information which may be necessary to cure the problem unless the fault with regard to the Customer Equipment has been caused by the negligence of KDDI. Such additional service described in this clause shall not be included in the Service.

9.4 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.

10.1 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.

11.1 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 willful 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 not use Equipment for any purpose other than that for which KDDI provided it;  

11.1.9 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.

11.1.10 provide all information and assistance reasonably requested by KDDI in connection with the Services; and

11.1.11 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 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. 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 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 sublicensable 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 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.  

13.1 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.

14.1 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.

15.1 The Customer shall not use the Services for any unlawful purpose or in breach of any applicable law or any other relevant law or protocol applicable to the Internet or any part of it or to anything connected to it or to any user of it. These prohibited uses include, but are not limited to:

15.1.1 infringement of and/or criminal offences relating to any right of a third party in any jurisdiction; 

15.1.2 knowingly or recklessly commissioning any criminal offence (including deliberate transmission of computer viruses); 

15.1.3 transmission or display or post to a publicly accessible service of any material which is knowingly or recklessly unlawful or actionably defamatory or an invasion of privacy, breach of an intellectual property right or breach of a right of publicity or privacy in any jurisdiction with which any publicly accessible service reasonably appears to have any connection or from which it may reasonably be apprehended that a publicly accessible service is likely to be accessed; 

15.1.4 forgery of Internet addresses or other fields in IP packets; 

15.1.5 knowingly or recklessly permitting any mass mailing of unsolicited advertising material by or for the Customer; and

15.1.6 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.

16.1 Neither party may assign its rights and obligations to a third party, without the prior written permission of the other, which shall not unreasonably be withheld.

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.

17.1 With respect to each Contract, each Party represents and warrants to the other that:

17.2 it is duly organised, validly existing and in good standing under the laws of the jurisdiction of its formation;

17.3 the Contract constitute a legally valid and binding obligation enforceable against it in accordance with its terms, subject to any equitable defences; and

17.4 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.

17.5 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 carries full liability for the loss of life, physical injury and damage to health when it is proven that such damage was caused by a default of the KDDI, KDDI’s legal representative or agent and on the condition that there is a causal link between the injury and the default. 

KDDI only accepts legal liability in accordance with statutory provisions for direct material damages which may arise from deceit, fraud or wilful misconduct.

KDDI is not liable for serious misconduct or wilful misconduct of KDDI’s employees, agents, representatives, etc. in connection with the execution of their professional activities.

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 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 unless the liability relates to an act of wilful misconduct, deceit or fraud be limited:

18.6.1 where a monthly rental charge is stated on the Service Application Form, to twelve (12) times that monthly rental charge; and

18.6.2 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.

19.1 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.

20.1 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.

21.1 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.  Any waiver of a right must be express and in writing. If there has been an express written waiver of a right following a specific failure by a Party, this waiver cannot be invoked by the other Party in favour of a new failure, similar to the prior one, or in favour of any other kind of failure.

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.

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 employees, agents and sub-contractors of its group companies, not use or disclose any Confidential Information 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 this 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.

28.6 The provisions of this clause will survive the termination or expiry of each Contract for a period of five years.

29.1 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 at first instance, refer the dispute to mediation in accordance with the then-current mediation procedures of the Belgian Centre for Arbitration and mediation ( Belgisch Centrum voor Arbitrage en Mediatie (CEPINA). 

29.2 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 29.3 neither Party will begin legal action unless the dispute remains unresolved for thirty (30) days (or such longer period as the Parties may agree) after service of the Commencement Notice. 

29.3 Each Contract shall be governed by and construed in accordance with the laws of the United Kingdom and the Parties agree to submit all disputes to the exclusive jurisdiction of the Courts of England and Wales. If in accordance with clauses 29.1 and 29.2 of this agreement, the parties are unable to resolve any dispute arising in connection with this agreement, any and all litigation and legal proceedings will take place in the sole jurisdiction of England and Wales.

30.1 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 30, 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.  

30.2 This clause 30 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.

31.1 If KDDI breaches any applicable service levels (“Service Level Agreement” (SLA)) 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’s service level data, KDDI’s data will prevail.

If one event or series of connected events causes KDDI 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.

31.2 KDDI will credit the Customer with the value of any valid service credit claim. If KDDI 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.

31.3 Subject to clause 18.6, 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 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.

32.1 Maintenance cover

KDDI shall render the Service solely to the Customer Equipment, and shall not be responsible for any application software other than any listed in the Service Application Form, or similar hardware and/or software or for any modifications made by the Customer or third parties other than KDDI’s approved third parties.

32.2 Maintenance documents

Any modifications made to the Customer Equipment by either Party must be documented and advised to the other Party.

32.3 Parts covered

KDDI shall exchange and replace parts and components of the Customer Equipment when such replacement is made necessary solely through the normal and proper use of the Customer Equipment as determined by both Parties, excluding wear and tear supplies, i.e. printer head, and operating supplies/consumable such as batteries, ribbons, papers, toner, magnetic media, etc.

32.4 Repairing

All the repair work is performed at the Customer’s site in principle, however, on some occasions it will be quicker and more productive to remove the faulty parts from the site to KDDI. This service will be provided as part of the Service.

32.5 Repairs to initial condition

If KDDI diagnoses that it is necessary to restore the Customer Equipment, the software or data; upon receipt of approval from the Customer, KDDI shall initialise it to the same condition as when it was originally installed by KDDI, or to any subsequent condition which may have been agreed between both Parties. 

32.6 Place of use

The Customer shall provide a suitable clean location for the installation and operation of the Customer Equipment, including adequate electrical supply. The Customer shall notify KDDI of any change of location of the Customer Equipment. The Customer shall be notified before it will allow KDDI access to the Customer Equipment and the Customer shall allow KDDI access at all reasonable times for the purpose of inspection and the performance of KDDI’s obligations herein.

32.7 Implementation of the Services

The Customer shall inform KDDI of a fault by contacting one of the numbers listed in the Service Application Form.

33.1 The items listed below  as (1) –(6) in this clause 33.1  shall be regarded as, including but not exclusively representing, the Additional Services which are beyond the extent of the Service referenced in clause 9.3 of  these General Terms and Conditions.  In case the necessity arises for the performance of the following maintenance and repair services, the Customer shall pay KDDI, as an additional expense, the hourly rates stipulated on the Service Application Form, or other such amounts that may have previously been agreed between the Parties:

(1) Service relating to problems outside the scope of those pursuant to the Customer Equipment as stipulated in clause 9.3 of this Agreement.

(2) Repair work on the Customer Equipment for difficulties which arise from the faulty operation of the systems by the Customer or third parties.

(3) Repair work on the Customer Equipment for difficulties which are caused by related equipment or parts other than the Customer Equipment defined in the Service Application Form or Schedule

(4) Onsite attendance, adjustment, tuning and other services for software or hardware modification, relocation or de-installation of the Customer Equipment.

(5) Refurbishment of the Customer Equipment.

(6) Service performed outside of the contracted hours.

34.1 Both Parties will comply with all applicable requirements of the Data Protection Legislation.

34.2 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”).

34.3 Without prejudice to the generality of clause 34.1, 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.

34.4 Without prejudice to the generality of clause 34.1, 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:

34.4.1 process Personal Data only on the written instructions of the Customer unless KDDI is required by the laws of any member of the European Union or by the laws of the European Union 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 Laws unless those Applicable Laws prohibit KDDI from so notifying the Customer;

34.4.2 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);

34.4.3 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

34.4.4 not transfer any Personal Data outside of the European Economic Area 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.

34.4.5 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];

34.4.6 notify the Customer without undue delay on becoming aware of a Personal Data breach;

34.4.7 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

34.4.8 maintain complete and accurate records to demonstrate its compliance with this clause 34 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. 

34.5 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 34. 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 34.

34.6 If, during the term of any Contract, the U.K. ceases to be a member of the European Union and/or the European Economic Area (“Brexit”), the terms of this clause 34 shall continue to apply and KDDI shall continue to comply with the Data Protection Legislation and all written instructions of the Customer. KDDI acknowledges that Brexit may adversely affect the obligations imposed on Data Processors under the Data Protection Legislation and that the Customer may seek to amend these Terms to ensure its continued compliance with its obligations as a Data Controller. In such circumstances, KDDI and the Customer shall negotiate in good faith to agree appropriate amendments to this clause 34.

35.1 KDDI represents and warrants that:

35.1.1 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

35.1.2  it will not make any facilitation payments, which are payments to induce officials to perform routine functions they are otherwise obligated to perform.

35.2  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.

36.1 For the purpose of this Section 36, terms such as “Network and Information System”, “Security of Network and Information System“, “Risk”, “Incident”, “Significant Incident”, “Significant Cyber-threat”, “Vulnerability”, “Competent Authority”, “Cybersecurity Centre Belgium or CCB” and “CyberFundamentals Framework” shall have the meaning assigned to them under Directive (EU) 2022/2555 of 14 December 2022 on measures for a high common level of cybersecurity across the Union (“NIS 2 Directive”) and applicable implementing national laws in EU Member States, such as, in Belgium, the Act of 26 April 2024 establishing a framework for the cybersecurity of networks and information systems of general interest for public security (NIS 2 Act).

36.2 KDDI undertakes to maintain the Security of its Network and Information Systems which it uses for the provision of its services to CUSTOMER, in accordance with all applicable laws and good industry practices.

36.3 KDDI undertakes to take appropriate and proportionate technical, operational and organisational measures to manage the Risks posed to the Security of its Network and Information Systems which it uses for the provision of its services to CUSTOMER, and to prevent or minimise the impact of Incidents on CUSTOMER. These measures shall be in line with the state-of-the-art and relevant European and international standards and be based on an all-hazards approach that aims to protect its Network and Information Systems and the physical environment thereof from Incidents. 

36.4 In particular, KDDI shall maintain at all times a comprehensive and up-to-date information security policy, including at least the following minimum cyber-security management measures :

(a) policies on risk analysis and information system security;

(b) incident handling;

(c) business continuity, such as backup management and disaster recovery, and crisis management;

(d) supply chain security, including security-related aspects concerning the relationships between KDDI and its direct suppliers or service providers;

(e) security in Network and Information Systems acquisition, development and maintenance, including Vulnerability handling and disclosure;

(f) policies and procedures to assess the effectiveness of cybersecurity risk-management measures;

(g) basic cyber hygiene practices and cybersecurity training;

(h) policies and procedures regarding the use of cryptography and, where appropriate, encryption;

(i) human resources security, access control policies and asset management;

(j) the use of multi-factor authentication or continuous authentication solutions, secured voice, video and text communications and secured emergency communication systems within the entity, where appropriate; 

(k) coordinated vulnerability disclosure policies; and 

(l) training of the management body and employees to ensure that they gain sufficient knowledge and skills to enable them to identify risks and assess cybersecurity risk-management practices and their impact on the services provided by KDDI.