Terms and Conditions
This Services Framework Agreement (“SFA”) is made and entered into as of the day of ,20[ ] by and between [Insert Cable and Wireless Entity Name] (“C&W”), a company established under the laws of [Territory/Country] (“Territory”) and [Insert Customer’s Legal Entity Name] (“Customer”), a company established under the laws of [Insert Territory/Country], each individually a “Party” and collectively referred to herein as the “Parties.”
Definitions and Interpretation
Any reference to the Master Services Agreement and/or MSA in applicable Schedules, Service Order Forms, Service Level Agreements or any other ancillary documents shall mean this Services Framework Agreement (“SFA”). The capitalized terms used in this SFA and accompanying Schedules, Service Order Forms and Service Level Agreements, shall have the meanings set forth in this SFA, unless otherwise defined in a particular Schedule.
1. Purchase & Delivery of Services.
1.1. Purchase of Services.
Customer hereby agrees to purchase certain telecommunications and/or information technology services (“Services”) described in the applicable Schedule(s) and corresponding Service Order Form(s). C&W agrees to provide to Customer such Services, either by its own means or by means of third parties, upon the terms and conditions set forth in this SFA and the applicable Schedule(s) and Service Order Form(s). 1.2. Delivery of Services. Customer acknowledges that any dates for the delivery and/or provision of the Services in the Schedule(s) and Service Order Form(s) are estimates only and C&W shall not be liable to Customer or any third party for any costs, damages, or other claims or amounts if the date(s) for delivery and/or provision of the Services does not occur or is delayed for any reason. Furthermore, C&W shall be entitled to change the specifications for the Services including, where necessary for operational reasons (provided that such changes do not materially affect the performance of the Services or, where applicable, corresponding Service Level Agreements (“SLAs”).
1.2. Delivery of Services.
Customer acknowledges that any dates for the delivery and/or provision of the Services in the Schedule(s) and Service Order Form(s) are estimates only and C&W shall not be liable to Customer or any third party for any costs, damages, or other claims or amounts if the date(s) for delivery and/or provision of the Services does not occur or is delayed for any reason. Furthermore, C&W shall be entitled to change the specifications for the Services including, where necessary for operational reasons (provided that such changes do not materially affect the performance of the Services or, where applicable, corresponding Service Level Agreements (“SLAs”).
2. Acceptance and Service Commencement.
Customer shall have seventy-two (72) hours after C&W’s first delivery of the Services to submit a written objection to the availability, functionality or quality of the Services in accordance with the terms of the applicable Schedule after which the Services shall be deemed as accepted by Customer. Notwithstanding the foregoing, invoicing of the Services shall commence on the date C&W delivers the Services (“Service Commencement Date”) provided that if Customer notifies C&W that there is a fault within seventytwo (72) hours after C&W’s delivery of the Services, the Service Commencement Date shall be the date on which the fault is rectified and C&W notifies the Customer.
3. Equipment and Network.
3.1 Customer Premise Equipment.
Where the installation and provisioning of the Services in or at the Customer’s premises requires electronic equipment, fixtures, facilities, fiber optic cable, associated electronics, accessories, hardware and other equipment used to provide the Services (“CPE”), C&W may supply this CPE for Customer on a bailment or rental basis. The risk of loss on the CPE shall pass to Customer upon installation in Customer’s premises.
C&W may require access to Customer’s premises to install and maintain the Services and Customer agrees to provide access to C&W or to such third party nominated by C&W for the purposes of installation, inspection, maintenance, repair, or removal of the CPE at any time during the term of this SFA. Customer shall allow C&W, or its underlying service provider, reasonable access to Customer’s premises and use of equipment, space, and electricity at no charge, as necessary, to provide and maintain the Services. Customer is responsible for the preparation and maintenance of Customer’s premises to facilitate installation, maintenance and operation of the CPE and the Services.
3.2.1. Installation Permission(s).
If Customer leases its business premises, Customer warrants and represents that the third-party owner of the business premises agrees to and has granted Customer permission for C&W to install CPE on said business premises.
3.3. CPE Repair and Replacement.
3.3.1. Customer Responsibility for CPE Repair & Replacement.
Customer is liable for damage to, or loss of CPE caused by acts or omissions of Customer or its personnel, or by Customer’s noncompliance with this SFA, or caused by theft, fire or other casualty at Customer’s premises, unless caused by the gross negligence or willful misconduct of C&W. Customer shall be responsible for all repair and/or replacement costs of CPE incurred as a result of faulty or damaged Customer equipment, failure of Customer to maintain Customer premises in accordance with Clause 3.2, or any damage to, or loss of CPE caused wholly or partially by the negligent or malicious acts or omissions of the Customer or its personnel.
3.3.2. Equipment Tampering.
Customer shall not move, rearrange, disconnect, remove, attempt to repair, or otherwise tamper with CPE or permit others to do so, and shall not use the CPE for any purpose other than that authorized by this SFA.
3.3.3. CPE Maintenance.
C&W will maintain the CPE in good operating condition during the term of this SFA, provided however, that such maintenance shall be at C&W’s expense only to the extent that it is related to and/or resulting from Customer’s ordinary and proper use of the CPE.
3.3.4. No Impairment to C&W Equipment Title.
Customer agrees that it shall take no action that directly or indirectly impairs C&W’s title to the CPE or any portion thereof, or exposes C&W to any claim, lien, encumbrance, or legal process. Customer shall promptly notify C&W in the event of an attachment or seizure or threat of an attachment to or seizure of CPE resulting from any claim, lien, encumbrance, conservatory, or legal proceeding undertaken by any third party. In any such instance, Customer shall defend and restore C&W’s right to title and possession of CPE.
3.3.5. Removal of CPE.
C&W reserves the right to remove CPE within a reasonable time following the discontinuance of the Services provided that where C&W removes any such portion of the CPE, it shall be responsible for returning the service location(s) to its prior condition, reasonable wear and tear excepted. C&W shall have no obligation to install, operate, or maintain Customer equipment or that of third parties. Neither C&W nor its employees, affiliates, agents, or contractors will be liable for any damage, loss, or destruction to Customer equipment, unless caused by the gross negligence or willful misconduct of C&W.
4. Customer Compliance Provisions.
4.1. Compatibility of Customer Network.
Customer accepts and agrees that C&W’s ability to provide the Services hereunder is conditioned on compatibility of Customer’s equipment, servers, networks, software upgrades, hardware changes, patch upgrades, software installations and directory changes. Customer shall ensure that Customer’s equipment is at all times compatible with CPE installed by C&W for the rendering of the Services as determined by C&W in its absolute discretion. To ensure CPE compatibility and optimal service quality, C&W may require Customer to move, replace or alter Customer’s equipment at Customer’s sole cost and expense. C&W may at any time remove, replace, or modify any CPE in its absolute discretion provided the basic technical parameters of the Services are not modified.
4.2. Customer’s Network Changes.
Customer shall notify C&W without delay regarding all changes to Customer’s network or equipment including but not limited to Customer’s servers, networks, software upgrades, hardware changes, patch upgrades, software installations or directory changes. Accordingly, in the event Customer makes any of the foregoing changes without notifying C&W, the Services may be subject to interruption without any liability of C&W and the terms of the relevant SLA shall no longer apply.
4.3. Compliance and Regulation.
Customer shall comply and ensure that its users comply, with all applicable local, national, international laws and regulations, as applicable, including without limitation: (i) approvals, consents, governmental authorizations, licenses and permits as may be required for Customer to perform its obligations hereunder and to use the Services; (ii) applicable export/re-export, import, customs, sanctions, regulations and laws; (iii) data protection laws; (iv) copyright, trademark and other intellectual property laws; (v) anti-pornography laws relating to the viewing, storage and distribution of illegal pornographic content, images or communications; (vi) unlawful surveillance and invasion of sexual privacy laws; and (vii) other applicable local, national or international laws.
4.4. Customer Representations.
Customer hereby represents and warrants that it has all necessary regulatory licenses and approvals to acquire and use the Services. In addition, Customer agrees not to export, directly or indirectly, the products or equipment associated with the Services, without C&W’s advance written consent.
4.5. Restriction or Deactivation of Services.
Notwithstanding any provision herein to the contrary, C&W may restrict or deactivate, or cause Customer to restrict or deactivate any or all of the Services in certain circumstances, including as follows: if C&W determines that (i) regulatory licenses and/or approvals are required by applicable law or governmental authority; or (ii) Customer, or any other person or entity who utilizes or accesses the Services, interferes with, or causes a disruption, degradation or interruption of the service, systems, equipment or networks of C&W or its affiliates and/or their respective customers. In such circumstances, Customer shall bear the cost of any additional protective apparatus required to be installed to address any such interference, disruption, degradation, or interruption under this sub-clause (ii); or (iii) Customer, or any other person or entity who utilizes or accesses the Services, in any unauthorized manner or in any manner that violates local, national, international laws described in Clause 4.3 herein; or (iv) as otherwise specified in this SFA.
4.6. Notice Provisions for Restrictions & Deactivation.
C&W reserves the right to suspend or deactivate the Service for cause under the provisions of Clauses 4.5, 7.2, 8.2 or 10.1. Where possible C&W may give Customer written notice of any suspension or deactivation.
4.7. Acceptable Use Policy.
All use of the Services shall comply with C&W’s Acceptable Use Policy (“AUP”) provided to Customer or posted on the C&W website at www.discoverflow.co/acceptable-use-policy. Notwithstanding the foregoing, C&W and its affiliates hereby reserve the right to modify the AUP at any time and it is the responsibility of Customer to consult C&W’s website to take notice of any changes made to the AUP. Provisions of the AUP hereunder may be superseded by new provisions or notices posted on our website, which may be accompanied by written notices issued to Customer.
4.8. IP Address Assignments & Allocations.
Any Internet Protocol (“IP”) address assignments and allocations from C&W and/or its affiliates are based on the address lending policy of the American Registry for Internet Numbers (“ARIN”), the Registry of Internet Addresses for Latin America and the Caribbean Region (“LACNIC”) and/or applicable agencies. It is an express condition of this SFA and of the loan of such IP addresses that:- (i) such assignments and allocations shall terminate and the IP addresses be returned to C&W when this SFA and/or the applicable Schedule and/or the applicable Services are terminated; and (ii) Customer accepts and agrees that, upon issuance of advance written notice to Customer, C&W reserves the unilateral right to reclaim IP addresses where Customer is in default under this SFA or where C&W deems, in its sole discretion, that the IP addresses are unused in connection with the Services.
5. Responsibility for Use of the Services.
5.1. Assumption of Risk.
CUSTOMER ASSUMES TOTAL RESPONSIBILITY FOR USE OF THE SERVICES, SOFTWARE AND CPE AND ACCESSES THE SAME AT ITS OWN RISK. C&W EXERCISES NO CONTROL OVER AND TAKES NO RESPONSIBILITY WHATSOEVER FOR CUSTOMER OR ANY THIRD PARTY ACCESSING OR POSTING CONTENT OVER THE SERVICES NOR IS C&W RESPONSIBLE FOR CONTENT ACCESSED BY CUSTOMER OR ANY THIRD PARTY THROUGH OR BY THE SERVICES. C&W EXPRESSLY DISCLAIMS ANY LIABILITY WHATSOEVER FOR ANY INTERNET CONTENT UPLOADED, TRANSMITTED OR DOWNLOADED BY CUSTOMER OR ANY THIRD PARTY IN ANY ONLINE SOURCE THROUGH OR BY USING THE SERVICES, INCLUDING BUT NOT LIMITED TO, DEFAMATION, SLANDER, LIBEL, OMISSIONS, FALSEHOODS, OBSCENITY, PORNOGRAPHY, PROFANITY OR ANY OTHER ILLICIT OR ILLEGAL CONTENT.
5.2. Disclaimer for Warranties, Equipment and Software.
CUSTOMER ACCEPTS THAT C&W’S SERVICES, SOFTWARE, OR ANY RELATED SOFTWARE COMPONENTS, OR ANY PART OR ASPECT THEREOF, ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS AND ACCEPTS ANY DISCLAIMERS HEREUNDER. C&W DISCLAIMS ANY WARRANTIES OR REPRESENTATIONS OF ANY KIND, WHETHER EXPRESS OR IMPLIED BY LAW, COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE OF TRADE OR OTHERWISE, OR WHETHER WRITTEN OR ORAL, WITH RESPECT TO THE SERVICES, SOFTWARE AND CPE PROVIDED BY C&W AND/OR ITS AFFILIATES AND UNDERLYING SERVICE PROVIDERS. C&W EXPRESSLY DISCLAIMS ANY PROTECTIONS OF SERVICE INCLUDING BUT NOT LIMITED TO THE FOLLOWING: ERROR-FREE AVAILABILITY; UNINTERRUPTED FUNCTIONING; NON-INTERRUPTION WITH USE AND/OR ENJOYMENT; SECURITY AND PROTECTION AGAINST UNAUTHORIZED FRAUDULENT ACCESS BY THIRD PARTIES TO CUSTOMER’S SYSTEMS; FUNCTIONING OF HARDWARE AND/OR SOFTWARE PLATFORMS; CORRECTION OF DEFECTS; RELIABILITY OF INFORMATION CONTAINED ON SOFTWARE; OR, LOSS OF USE ARISING FROM THIRD PARTY INFRINGEMENT CLAIMS AND INJUNCTIONS. C&W FURTHER EXPRESSLY DISCLAIMS ANY WARRANTY OF MERCHANTABILITY, DESCRIPTION OR FITNESS FOR ANY PARTICULAR PURPOSE OR FUNCTION; WARRANTY OF TITLE, QUALITY, OPERATION, INTEGRATION, ADEQUACY, SUITABILITY, OR WARRANTY AGAINST INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS OF A THIRD PARTY. NO ADVICE OR INFORMATION GIVEN BY C&W, ITS AFFILIATES OR ITS AND THEIR EMPLOYEES OR ITS CONTRACTORS SHALL CREATE ANY WARRANTY.
6. Term, Termination; Automatic Renewal and Renewal Term(s).
6.1.1. Term of SFA.
This SFA shall commence on the date of execution by Customer (“Effective Date”) and shall remain in effect until the date of expiration of all Schedules and/or Service Order Form(s) and, Service Level Agreements, as applicable (the “Term”). Where any Schedule or Service Order Form is executed or Services provided, prior to the Effective Date, the Parties agree that such Schedules, Service Order Form(s) and Services shall be governed by this SFA.
6.1.2. Service Commencement and Automatic Renewal.
The term of the applicable Services ordered pursuant to a Schedule and its corresponding Service Order Form(s) shall commence upon the Service Commencement Date. Unless otherwise set forth in the applicable Schedule, the Services shall automatically renew on the same terms and conditions subject to any applicable pricing adjustments, unless either Party provides written notice of termination at least thirty (30) days prior to the end of the applicable Term.
6.1.3. Price Increases.
Where the term of an applicable Schedule and corresponding Service Order Form exceeds three (3) years, the charges identified in the applicable Service Order Form may be increased by C&W from the fourth anniversary of the applicable Schedule and corresponding Service Order Form by the percentage increase (if any) in the Consumer Price Index (CPI) of the Territory since the applicable Service Commencement Date and C&W shall notify Customer of the revised charges thirty (30) days prior to the charges taking effect. If there is no CPI increase, there shall be no increase in the charges in the applicable Service Order Form. Where charges have been increased based on the CPI, the new charges shall remain in effect upon automatic renewal of the applicable Services ordered pursuant to a Schedule and its corresponding Service Order Form.
6.2. Customer Termination.
If Customer terminates the Services prior to the end of the Services term, Customer shall be liable for and shall pay one hundred percent (100%) of all monthly recurring charges (“MRC(s)”) for each month remaining in the Services term. Customer agrees that the actual damages in the event of such cancellation would be difficult or impossible to ascertain, and that this termination charge is intended, therefore, to constitute liquidated damages representing a genuine pre-estimate of such loss or damage and is not intended as a penalty.
7. Payment and Taxes.
7.1 Billing and Payment.
Customer is responsible for the payment of all accounts for Services in Customer’s name and bills for all charges will be rendered to Customer. All bills rendered to the Customer must be paid in full on or before the date shown on the bill. All payments shall be made by Customer within thirty (30) days of the date of the relevant invoice (“Billing Period”) in the manner and currency specified in the applicable Schedule or Service Order Form, or by transfer to such bank account as C&W may from time to time notify in writing to Customer. Customer shall not be relieved from making a prompt payment to C&W where Customer has not received a bill showing the amount owed on Customer’s account. Customer shall call C&W immediately to obtain the current balance if Customer has not received Customer’s monthly bill.
7.2. Payment of Charges during Service Suspension and Deactivation.
In the event Services are suspended or deactivated for non-payment, Customer remains liable for all charges during suspension or deactivation (including charges incurred prior to or as a result of suspension or deactivation) unless C&W in its sole discretion, determines otherwise. Services will not be deactivated for non-payment of a disputed charge unless C&W has reasonable grounds for believing that the purpose of the dispute is to evade or delay payment.
7.3. Billing Period Changes.
C&W reserves the right to change the Billing Period upon notifying Customer in writing thirty (30) days before any changes take effect. C&W reserves the right to change the payment terms, including but not limited to where Customer does not pay its bills on time or in full or if any payment method used by Customer is dishonored. C&W will notify Customer thirty (30) days before any changes take effect. If Customer does not agree to the changes to the payment terms, Customer may terminate the Services, without being liable for early termination charges under Clause 6.2, by giving C&W notice in writing within twenty (20) days of the date of C&W’s notice. If Customer continues to use the Services or if Customer pays any amount billed to Customer’s account after C&W has given notice under this Clause, Customer shall be deemed to have accepted the changes to the payment terms.
7.4 Late Charges and Reconnection Fees.
7.4.1. Late Charges.
In the event of non-payment of any invoice or failure to pay in full within the Billing Period, C&W reserves the right to charge and receive interest at a rate equal to three percent (3%) monthly on any outstanding amounts which are not the subject of a bona fide dispute, until payment is received in full, whether before or after judgment, together with all costs, reasonably incurred by C&W in securing such payment and/or obtaining such judgment, as the case may be.
7.4.2. Reconnection Fees.
Where Customer’s Services have been suspended or deactivated for non-payment, C&W reserves the right to charge Customer the reconnection fee in effect at the time of service suspension or deactivation.
The charges for the Services are exclusive of applicable taxes and surcharges. All payments due under this SFA shall be made without any deduction or withholding unless such deduction or withholding is required by any applicable law of any relevant governmental revenue authority then in effect. If Customer is required to deduct or withhold any amounts, it shall promptly notify C&W of the requirement, provide an official receipt or certified copy or other documentation acceptable to C&W evidencing payment, and shall pay to C&W in addition to the payment to which C&W is otherwise entitled under this SFA, the additional amount necessary to ensure that C&W receives the full amount without such deduction or withholding.
7.5. Customer Responsibility for Tax Payments.
Notwithstanding anything else herein contained, the Customer agrees that it shall be responsible for the payment of all taxes payable by it and Customer further acknowledges that C&W may, if statutorily obligated, remit payment of such taxes directly to the applicable taxing authority from any payment due to Customer. C&W shall if so required, provide to the Customer receipts of such payments to the applicable taxing authority in the name of the Customer within such period as may be reasonable in the circumstances.
Upon application for the Services or at any time during the course of this SFA, Customer may be required to pay a deposit as set out in the applicable Service Order Form. This deposit may be applied to any arrears on Customer’s payments for any Services during the Term of this SFA, or as security for any CPE, C&W Equipment or Software provided to Customer. If C&W is required to make drawdowns from the deposit during the course of this SFA so that the amount of the deposit is diminished, Customer shall immediately replenish the deposit so that it reaches the initial deposit amount. If Customer fails to replenish the deposit, C&W may suspend the Services upon thirty (30) days’ notice to Customer.
7.6 Credit Checks.
The Customer consents and authorizes C&W:- (i) to investigate Customer’s creditworthiness for business purposes; (ii) to conduct any necessary credit checks on Customer and (iii) disclose information or make reports relating to Customer’s credit standing to third party credit reporting agencies or providers, or, in the event of payment delinquency or repeatedly late payments, to debt collection agencies or providers. C&W reserves the right to determine whether Customer’s credit standing is satisfactory in order to originate or continue the Services or increase the customary deposit amount based on Customer’s credit standing or refuse service based on Customer’s credit risk status.
8.1. Insurance Requirements.
Customer shall maintain throughout the Term and renewal terms, appropriate insurance coverage with a minimum “A” rating from A.M. Best & Company for financial strength or the equivalent rating by any other major rating agency. Such insurance coverage shall include but not be limited to commercial general liability or public liability insurance (and cyber liability insurance for businesses transmitting Personally Identifiable Information (“PII”).
8.2. Evidence of Insurance.
Customer agrees to provide C&W with certificates of insurance evidencing the existence of appropriate coverage with a minimum coverage amount of United States Five Hundred Thousand Dollars (US$500,000.00), as requested by C&W from time to time. In no event shall the limits of any such policies be considered as limiting the liability of Customer under this SFA. The failure to provide acceptable coverage shall be deemed a breach of this SFA entitling C&W to suspend or deactivate the Services.
9. Resale of Services Prohibited.
Except as otherwise specified in this SFA, Customer hereby accepts and agrees that the Services purchased by the Customer pursuant to this SFA and as described in a Schedule and its corresponding Service Order Form(s), shall not be resold, leased, sublicensed, rented, loaned, assigned, conveyed, or transferred, whether directly or indirectly to any individual, residence, business, or entity. Customer hereby agrees to defend and hold C&W, its affiliates and underlying service providers and vendors harmless and defend and indemnify them against any claims, causes of action or liability, including but not limited to any unauthorized resale of the Services under this SFA, arising from or related to such third-party resale. Where Customer breaches this Clause 9, C&W shall be entitled to suspend or deactivate the Services or terminate this SFA immediately.
10. Customer Default and Remedies.
10.1. Service Suspension or Deactivation.
In addition to the provisions set forth in Clause 7.2, C&W may exercise its right to suspend or deactivate the Services in the event of late payment upon giving seven (7) days written notice to Customer. This clause shall not impair the exercise of any remedy not referred to herein immediately upon default, including, without limitation, the seeking of any mandatory or prohibitive injunction or restraining order.
10.2 Customer Events of Default.
The following are “Customer Events of Default” under this SFA: (i) Except in the instance of a disputed bill or invoice, failure to pay in full, as and when due and payable, any amount required by this SFA or its Schedule(s) or Services Orders, which failure is not cured within twenty (20) days following the date of C&W’s notice of non-payment and suspension or deactivation; (ii) Customer shall fail to observe any condition or term of this SFA, or its Schedule(s) or Service Order Form(s) which failure shall continue for thirty (30) days after written notice thereof to Customer; (iii) if Customer commits a material breach of this SFA or any other agreement with C&W which is incapable of remedy; (iv) Customer breaches Clause 8; or (v) Customer breaches Clause 18 of this SFA.
10.2.1. Notice of Termination by Direction of Governmental Authority.
If C&W is directed by a governmental authority to cease to provide the Services to the Customer, C&W shall give the Customer thirty (30) days’ written notice of such intent to terminate the Services unless such notice to terminate is not permitted by the governmental authority.
10.3 Default Remedies.
In the event of Customer’s default under the provisions of this SFA, any Schedule(s) or corresponding Service Order Form(s), C&W shall be entitled, and following the notice period outlined in Clause 10.1 above, to any or all of the following remedies: (i) to suspend the applicable SLA and service credits; (ii) to deactivate any or all Services and terminate this SFA and all Schedules and Service Order Form(s) hereto. All MRCs which would have been payable during the remainder of the applicable Services term, shall immediately accelerate and be due and payable to C&W; (iii) C&W may take appropriate action to enforce payment; and (iv) to apply all or any portion of the deposit held by C&W.
The remedies identified in this SFA shall be cumulative and not exclusive and C&W shall be entitled to all other remedies available under law or at equity.
11. C&W Default, Service Outages and Remedies.
11.1 Failure to Perform Obligations.
If C&W shall fail to perform any of its material obligations under this SFA and such failure continues unremedied for a period of thirty (30) days after written notice of such failure is provided to C&W, Customer may terminate this SFA and Customer shall not be liable for early termination charges except for unpaid charges accruing through the effective date of termination. Customer’s right to terminate this SFA shall be Customer’s sole and exclusive remedy for an uncured default or breach by C&W.
11.2. Exclusive Remedy for Performance/Non-Performance.
Notwithstanding the foregoing clause or any other provision in this SFA to the contrary, Customer’s sole and exclusive remedy arising from the performance and/or nonperformance of the Services or outages of the Services shall be limited to the credits set forth in the applicable SLA and this limitation shall apply to all causes of action and claims, including, but not limited to, breach of contract, negligence, strict liability, misrepresentation and any other torts.
12. Limitation of Liability.
NOTWITHSTANDING ANYTHING IN THIS SFA TO THE CONTRARY, NEITHER C&W, CUSTOMER NOR ANY THEIR RESPECTIVE AFFILIATES, SHALL BE LIABLE FOR ANY INDIRECT, CONSEQUENTIAL, INCIDENTAL, SPECIAL, EXEMPLARY OR PUNITIVE DAMAGES, OR FOR ANY LOST PROFITS OF ANY KIND OR NATURE WHATSOEVER (SUCH AS, WITHOUT LIMITATION, LOSS OF REVENUE, LOSS OF DATA, LOSS OF USE, LOSS OF OPPORTUNITY AND AVAILABILITY OF COMPUTER RESOURCES, INTERRUPTION OF SERVICE, RE-PROCUREMENT AMOUNT, WASTED EXPENDITURES, LOSS OF GOODWILL, LOSS OF SAVINGS OR OTHER COMMERCIAL OR ECONOMIC LOSS) REGARDLESS OF (I) THE LEGAL THEORY UNDER WHICH SUCH LIABILITY IS ASSERTED; (II) WHETHER SUCH DAMAGES WERE FORESEEABLE AND (III) REGARDLESS OF WHETHER A PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF ANY SUCH LIABILITY, LOSS OR DAMAGE; PROVIDED THAT THIS LIMITATION SHALL NOT APPLY WITH RESPECT TO THE GROSS NEGLIGENCE, WILFUL OR INTENTIONAL MISCONDUCT OR FRAUD OF EITHER PARTY. UNDER NO OCCASION MAY THE DAMAGES PAYABLE BY A PARTY EXCEED THE TOTAL PRICE PAID BY CUSTOMER FOR THE SERVICES PROVIDED BY C&W UNDER THIS SFA.
13.1. Customer Indemnification.
Notwithstanding Clause 12 above, Customer shall indemnify, hold harmless and defend (“Indemnifying Party”) C&W, its parent company, affiliates, successors, employees, officers, directors and agents, underlying vendors and service providers and subcontractors (“Indemnitee”) from and against all claims, demands, actions, suits, proceedings, writs, judgments, orders and decrees brought, made or rendered against Indemnitee and all damages, losses and expenses (including without limitation, attorney fees and costs) suffered or incurred by any of them (collectively, “Claims”) caused by, arising out of or related to:- (i) Customer’s failure to perform an obligation under, or any breach of, this SFA; (ii) the content and data transmitted via the Services; (iii) Customer’s non-consensual use and distribution of Personal Data (defined below) of others over C&W’s telecommunications network in violation of Data Protection Laws (defined below); (iv) Customer’s infringement of intellectual property or other proprietary rights arising from combining with or using any device (except equipment), system or service in connection with C&W’s Services with software subject to third party intellectual property rights (“Third-Party IP”); (v) Customer’s unauthorized use of the Services, including but not limited to, unauthorized resale of Software or Third-Party IP; (vi) for libel, slander, defamation, or infringement of copyright or other proprietary right with respect to material transmitted by Customer over C&W’s telecommunications network; (vii) any damage caused to CPE by Customer in the course of moving or replacing equipment; or (viii) for injury, death or property damage arising out of Customer’s breach of this Agreement.
14.1. Confidential Information.
“Confidential Information” shall mean any business, financial or technical information in whatever form, provided by one Party (“Disclosing Party”) and received by the other party (“Receiving Party”) and which is either (i) designated or marked as “confidential”; or (ii) which should reasonably have been understood as confidential to the Receiving Party due to the circumstances of disclosure or the nature of the information itself. Confidential Information may include, but is not limited to, a party’s business plans, pricing, pricing proposals, promotional and marketing activities, customers, customer lists, supplier lists, products, services, developments, trade secrets, know-how, software, source code, object code, or C&W charts, designs, drawings, non-public information relating to C&W’s technology, negotiations connected with any dispute, or, all documents or materials prepared by the Receiving Party which contain, are derived from, summarize, analyze, or are based upon information furnished by the Disclosing Party. Confidential Information does not include information that: (i) becomes publicly known other than by breach of Clause 14.2; or (ii) was obtained by the Receiving Party free of any obligation of confidentiality at the time of disclosure; or (iii) was obtained from a third party free to disclose it; or (iv) was developed independently by the Receiving Party without reference to the information provided by the Disclosing Party and as proven by documentation or other reasonable evidence.
14.2. Confidentiality Obligations.
All Confidential Information shall remain the property of the Disclosing Party. Unless the Disclosing Party otherwise expressly agrees in writing, such Confidential Information shall (i) be treated in confidence by the Receiving Party and used only for the purposes of performing the Receiving Party's obligations under this SFA; (ii) not be disclosed to anyone, except to employees, contractors or professional advisors of the Receiving Party on a need-to-know basis; (iii) not be reproduced or copied in whole or in part, except as necessary for use as authorized in this SFA; and (iv) together with any copies thereof, be returned, destroyed or, if recorded on an erasable storage medium, erased when no longer needed or when this SFA terminates, whichever occurs first.
The foregoing conditions do not apply to any part of the Confidential Information which (i) is or becomes known to the Receiving Party free of any obligation to keep same in confidence; (ii) is or becomes generally available to the public without breach of this SFA; (iii) is independently developed by the Receiving Party; or (iv) is required to be disclosed by court order or other lawful government action.
This SFA, Schedule(s), SLAs, Service Order Form(s), all pricing and payments under this SFA and any quotation or pricing proposal provided to Customer by C&W are confidential and shall not be disclosed to any third parties without C&W’s prior written consent.
The confidentiality obligations of each Party will survive expiration or termination of the SFA.
15. Licensing of Software; Use of Third-Party IP.
15.1. Software Licensing.
Subject to Customer’s payment of applicable fees and to compliance with all the terms provided hereunder and in the Software Documentation (defined below), if the Services include C&W’s software services, (“Software”) either directly or through its affiliates and/or underlying vendors and service providers, C&W will grant to the Customer without further charge a non-exclusive, non-transferable license to (i) use the Software and any updates, (ii) to possess and refer to the Software licence, manufacturer’s terms and conditions, documentation, instructions manual or other information in respect of the Software made available by C&W (“Software Documentation”), and (iii) to make such copies of the Software as are necessary to Use the Software. For the purposes of this clause, “Use” shall include the copying or transmission of the Software or (where in machine readable form) the Software Documentation for use in accordance with the instructions contained in the Software or (as the case may be) the Software Documentation and the applicable AUP. The Software will be described in the relevant Service Order Form. Software supplied to the Customer as set out in the Service Order Form, shall include any replacements, modifications, variations, enhancements, or additions thereto. The licenses will be granted for a term of one (1) month (unless otherwise agreed) and renewed automatically for subsequent one (1) month terms. Fees for the Software service will be included in the Service Order Form. If Customer requires a reduction to the number of licenses, Customer must notify C&W no later than sixty (60) days prior to the date the change will take place. If Customer requires an increase in the number of licenses, Customer shall submit a request to C&W no less than thirty (30) days prior written notice. Any confirmed and approved change shall be in writing and documented as an amended or appended Service Order Form.
15.2. Third Party Intellectual Property Rights.
Customer acknowledges that the intellectual property (IP) rights to the Software are reserved exclusively by the manufacturer or vendor, reseller, or C&W and its affiliates, as applicable. Customer further acknowledges and agrees that it is responsible for:- (i) the use of third party software or other Third-Party IP installed in Customer’s systems that Customer is using on the C&W network and cloud computing platforms including any which Customer provides or procures access to C&W, its affiliates and/or underlying service providers or vendors for the provision of the Services; and (ii) compliance of licenses of the Third-Party IP installed in Customer’s systems including the specific authorization to use the Third-Party IP in a multitenant (cloud) environment. Customer hereby represents and warrants that it owns, or has the right to use the intellectual property rights of the software Customer provides to C&W, its affiliates and/or underlying service providers for the provision of the Services including the Third-Party IP.
15.3. Licensing Verification.
Customer acknowledges that C&W may from time to time request information, written confirmation and proper licensing verification of Third-Party IP for C&W’s own internal audit purposes or as requested from time to time by owners and resellers of Third Party IP, including verification that Customer has the specific authorization to use the Third Party IP in a multitenant cloud environment. In the event that Customer does not respond promptly to an information request related to the Third-Party IP, C&W, in its sole discretion, may immediately suspend any or all Services provided to Customer. C&W and/or its affiliates may remotely monitor Customer’s use of the Third-Party IP on Customer’s systems operated on the C&W network and cloud computing platform. Customer agrees that any damages incurred by C&W shall be subject to indemnification by Customer as provided in Clause 13. above. Before the activation of a Service, C&W may request (i) a list of the Third-Party IP to be used by Customer on the C&W network and cloud computing platforms; (ii) proof of payment of all license fees and costs for the Third-Party IP; (iii) the existence of a valid license of the Third Party IP for the term of the Services purchased by Customer; or (iv) the specific written authorization to use the Third-Party IP in a multitenant cloud environment. Furthermore, C&W may demand a deposit from Customer for an estimated amount of such license fees as a condition to activation of the Services.
15.4. Unauthorized Software Uses.
15.5. Software Back-up.
Customer may not create any copy of the Software, except (i) for back-up purposes; (ii) for the exercise of any other ancillary rights implied by law; or (iii) with C&W’s express written authorization.
15.6. Software Use Audits.
C&W, its affiliates and/or underlying service providers may remotely monitor Customer’s use of the Software for the following purposes:- (i) remote diagnosis and provision of support; (ii) to determine applicable fees; and (iii) to verify compliance of the terms and restrictions of Software use. Customer shall cooperate with C&W and its affiliates in conducting such audits.
15.7. No Liability for use of Third-Party Software.
Where C&W serves as a reseller for third party software for the provisioning of Services to Customer, the disclaimers contained in Clauses 5.1 and 5.2 of this SFA shall apply. C&W requires that any software manufacturer or software publisher warrant that such products do not breach Third-Party IP rights and shall require Customer to obtain all applicable licences directly from the software manufacturer or software publisher. C&W shall pass through to Customer all warranties from software manufacturers or publishers, which should be contained either in the software documentation or software manufacturer’s or publisher’s website(s). If any such third-party software products resold to Customer breach Third-Party IP rights, Customer agrees that it shall proceed solely against the applicable manufacturer for remedies at law and equity for actual damages arising from Customer’s loss of use of the third-party software products, subject to applicable law.
Except as provided in this clause, neither this SFA, any Service Order Forms, Service Schedules nor any annexes thereto, nor the rights and obligations arising therefrom may be assigned by Customer without the prior written consent of C&W in each instance, such consent not to be unreasonably withheld or delayed. Notwithstanding the foregoing, Customer may assign its rights under this SFA to a solvent affiliate, without C&W’s consent provided that the assignee shall be subject to all of the restrictions and obligations of the assigning Party hereunder. C&W may assign this SFA, any Service Order Forms, Service Schedules or any annexes thereto at any time without Customer’s consent by providing Customer notice thereof.
17. Force Majeure.
Except for Customer’s payment obligations under this SFA and all Schedules and Service Order Forms, neither Party shall be liable under this SFA for delays, failures to perform, damages, losses or destruction, or malfunction of any equipment, or any consequence thereof, caused or occasioned by, or due to fire, earthquake, flood, water, the elements, strikes, labor disputes or shortages, utility curtailments, power failures, explosions, civil disturbances, act of God and nature, criminal activity, embargoes, epidemics, pandemics, public health emergencies, wars, riots, insurrections, cable failures or cuts, other material failures, governmental or any regulatory agency actions, shortages of equipment or supplies, unavailability of transportation, acts or omissions of third parties, or any other cause beyond such Party’s reasonable control. Any such events described in this clause shall be referred to as a “Force Majeure Event”.
18.1 Anti-Corruption Compliance.
The Customer agrees that its performance under this SFA will be in full compliance with all applicable anti-corruption laws and regulations in the Territory. Accordingly, Customer agrees that neither Customer nor any agent, affiliate, manager, employee, officer, shareholder, or other person acting on its behalf:- (i) will offer, promise, give, or authorize the offer, promise or giving of any gift, improper or undue payment, bribe or anything of value to, or (ii) receive or authorise the receipt of any gift, improper or undue payment, bribe or anything of value from, any person (including without limitation any government official, political party, or candidate for public office), (i) as an inducement or reward for doing or forbearing to do, or as a bribe, rebate, payoff, influence payment, facilitation payment, kickback, or other unlawful payment, to any government official, political party, or candidate for public office in order to obtain or retain business, gain any unfair advantage, or influence any act or decision of a government official, (ii) on account of favourable action or forbearance from action or the exercise of influence in relation to the obtaining or execution of this or any other SFA with C&W.
18.2. Safeguards against Prohibited Actions.
Customer shall establish appropriate safeguards to protect against such prohibited actions. Any breach of this clause by Customer or by anyone employed by it or acting on its behalf (whether with or without the knowledge of Customer) shall entitle C&W to terminate this SFA and/or recover from Customer the amount or value of any such gift, consideration or commission.
19. Use of Personal Data
19.1. Customer Personal Data.
Customer acknowledges that in the course of providing the Services, C&W may have access to Customer Personal Data, which unless otherwise defined in the applicable local and international data protection laws and regulations (“Data Protection Laws”) shall include any data collected and/or stored by C&W relating to an identified or identifiable natural person. Both parties shall comply with all applicable requirements of applicable Data Protection Laws.
19.2. Customer Consent.
Without prejudice to the generality of Clause 19.1, Customer shall ensure that it has all necessary appropriate consents and notices to enable lawful transfer of the Customer Personal Data to C&W and/or lawful collection of the same by C&W for the duration and purposes of this Agreement.
19.3. Processing of Customer Personal Data.
19.4. Protection against Unlawful Processing.
C&W shall implement the technical and organizational measures (“TOMs”) set out in Clauses 20 (Network and Security) and 22 (Security Standards) to protect against unauthorized or unlawful processing of Customer Personal Data and against accidental loss or destruction of, or damage to, Customer Personal Data. Customer agrees that Customer has reviewed C&W’s TOMs and confirms that these are appropriate to the harm that might result from the unauthorized 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.
20. Network and Security.
C&W’s network security controls are designed to protect Customer Personal Data and C&W’s products, services, and tools from downtime due to malicious and unintentional failures. C&W’s network security is designed to provide minimum standards to ensure our customers have reliable service and customers’ data is kept secure and confidential. C&W will manage access controls and policies to manage what access is allowed to the C&W network from each network connection and user. C&W will take corrective action and maintain incident response plans to respond to potential security threats.
Data and information processed through C&W facilities and equipment may be subject to monitoring activities by C&W, its suppliers, local or national authorities to facilitate the provisioning of the Services, in accordance with applicable legal requirements. To the extent consent or notification is required by Customer and/or end-users under applicable Data Protection Laws or other laws, Customer grants its consent under and represents that it obtain at all relevant times the necessary consents from all end-users.
22. Security Standards.
22.1. C&W Security.
C&W’s TOMs include measures which may, for example, relate to data handling practices, back-up procedures and server, workstation and transmission security for internal communications.
22.2. Customer Security.
Customer shall be solely responsible for selecting and using the level of security protection needed for the data and information it is accessing, receiving, storing, processing or using, including without limitation, Customer Personal Data, individual health and financial content, as applicable. C&W shall not be responsible for data breach damages and the consequences arising from Customer’s failure to maintain sufficient security on its computer network for the size of its business operations, including but not limited to, firewalls, data encryption, passwords, anti-virus protection, back-ups, software updates and software patches, to prevent unauthorized access, use and data breaches or to otherwise fully protect Customer’s interests.
23. No Third-Party Beneficiary.
The terms and benefits of this SFA are not intended for, nor shall they be for the benefit of or enforceable by, any person or entity that is not a party to this SFA.
24. No IP Rights.
Nothing contained in this SFA shall be construed as conferring by implication, estoppels or otherwise any license or right in or under any patent, trade name, copyright or other intellectual property of (i) C&W, its Affiliates and/or underlying service providers or vendors. or, (ii) Customer.
Any notice or communication required or permitted to be given hereunder may be delivered by hand, by courier, mailed by registered or certified mail, return receipt requested postage prepaid, or by electronic mail transmission, in each case to the applicable address or e-mail address of the Receiving Party. Such notice or other communication shall be sent to the address(es) included in the Notice Schedule or to such other address(es) as a Party may designate from time to time in writing. Such notice will be deemed to have been given as of the date it is delivered, mailed or sent by courier or confirmed delivered by return receipt electronic mail transmission, whichever is earlier. If no address is specified in the Notice Schedule, notices shall be sent to the address listed in this SFA or the Service Order Form.
26. Dispute Resolution.
26.1 Dispute Resolution Methods.
In the event of any dispute between the Parties relating to the terms, interpretation or performance of this SFA (other than claims for preliminary injunctive relief or other pre-judgment remedies), such Parties shall first attempt in good faith to informally resolve such disputes between themselves in accordance with the procedures outlined in this Clause prior to commencing any other dispute resolution methods.
26.2 Informal Dispute Resolution Process.
To initiate an informal dispute, any Party presenting a dispute (“Disputing Party”) shall deliver written notice of dispute to the other Party in accordance with the notice requirements set forth in Clause 25. Such notice of dispute shall include the nature of the dispute, the amounts in involved, if any, and the remedies sought by the Disputing Party.
26.3 Designated Management Representatives.
Each Party shall appoint a designated, first-level, management representative with the authority to settle any dispute who shall, within seven (7) working days of receipt of a written notice from either Party to the other, meet in an effort to resolve the dispute. If the dispute is not resolved by the first-level, management representatives within fifteen (15) days of that meeting, the dispute shall be referred to a second level of management who must meet within fifteen (15) days (or such other period as may be agreed) to attempt to resolve the dispute. To facilitate informal dispute resolution by the second level of management representatives, the Parties shall promptly prepare and exchange memoranda stating the issues in dispute, the Parties’ respective positions and a summary of any preceding negotiations, and attaching all relevant documents.
26.3 Injunctions; Other Proceedings.
This Clause shall not operate to restrict either Party from: (i) initiating any proceedings in respect of a matter where such Party has reasonable cause to do so to avoid damage to its business or to protect or present any right of action it may have; or (ii) applying -for or obtaining emergency or interlocutory relief.
26.4 Continuing Obligations.
Without prejudice to (i) either Party’s right to seek redress through any dispute resolution means or (ii) the rights of the Parties in any future proceedings, the Parties shall continue to perform their respective obligations under this SFA notwithstanding any disputed matter or the implementation of the procedures set forth in this Clause.
The failure of either Party to enforce any of its rights or to require the performance of any obligation, responsibility or liability of the other Party under this SFA shall not of itself be taken as a waiver of that Party’s rights, obligations, responsibilities or liabilities under this SFA. All rights granted to either of the Parties shall be cumulative and no exercise by either of the Parties of any right under this SFA shall restrict or prejudice the exercise of any other right granted by this SFA or otherwise available to it.
27.2. Order of Priority.
If any provision of the SFA should conflict with the terms of a Schedule, Service Order Form or SLA, this SFA shall prevail in all respects. The terms and conditions set forth herein shall apply to all Schedules, Service Order Forms, SFA, SLAs and any amendments, addendum, appendices and annexes thereto, which are incorporated by reference.
The normal rule of construction to the effect that any ambiguities are to be resolved against the drafting party shall not be employed in the interpretation of this SFA. The language of all parts of this SFA shall be construed as a whole, and according to its fair meaning, and not strictly for or against either of the Parties.
If any of the provisions of this SFA is or becomes illegal, unenforceable, or invalid (in whole or in part for any reason), the remainder of this SFA shall remain in full force and effect without being impaired or invalidated in any way.
All terms and provisions of this SFA, which by their nature should survive the termination, cancellation or expiration of this SFA, shall so survive, including without limitation, those provisions relating to payment of outstanding fees, confidentiality, indemnification, limitation of liability, and dispute resolution.
27.6. Governing Law, Jurisdiction, Venue.
All disputes arising under this SFA shall be governed by and interpreted in accordance with the laws of the Territory without regard to principles of conflict of laws. In relation to any legal action or proceedings (i) arising out of or in connection with this SFA or its implementation or effect or (ii) relating to any non-contractual obligations arising out of or in connection with this SFA, each of the Parties irrevocably submits to the exclusive jurisdiction of the applicable court in the Territory. No party to this SFA will challenge the jurisdiction or venue provisions as provided in this Clause.
27.7. Authenticated Electronic Signature(s).
27.7.1 Use of Authenticated Electronic Signature(s).
The Parties agree that this SFA, the Schedules, Service Order Forms, SLAs, amendments and other contractual documents may be executed by means of authenticated electronic signature technologies and that such technologies, and the identification techniques of the authorized and responsible individuals for such purpose shall be deemed reliable and valid methods of electronic signature for all legal purposes.
27.7.2. Validity of Electronic Signatures.
The Parties agree and represent that the execution of this SFA and related contractual documents through authenticated, electronic signature(s) and the electronic delivery shall be deemed:- (i) valid, binding and enforceable in accordance with their terms and have the same force and effect as original, handwritten signatures; (ii) entire, complete and unaltered since their origin; and (iii) a reliable and proper method for the execution of this Agreement between the Parties. The electronically signed copies of the SFA and other related contractual documents shall be deemed original documents for the purposes of validity, enforceability and admissibility in any judicial, dispute resolution, extra-judicial or other legal proceedings
This SFA may be executed in two or more counterparts, which together shall constitute a single agreement.
27.9. Entire Agreement; Amendments.
This SFA, together with all Schedules, Service Order Forms, SLAs and any amendments, addendum, appendices and annexes thereto constitute the entire agreement between the Parties with respect to the purpose, obligations and commitments contained herein and supersedes all prior discussions, agreements, contracts or understandings, whether written or oral, between the Parties with respect to the subject matter of this Agreement. Any amendments to the terms set forth in this SFA shall be in writing and signed by the Parties.
The Parties hereto agree and represent that (i) each signatory to this SFA is duly authorized and legally entitled to act on behalf of their respective Party; (ii) each Party shall be liable for the obligations derived from the contractual documents signed, acknowledging their validity and mandatory force.