General Terms and Conditions for the Provision of Services by CITIC Telecom CPC Estonia OÜ

Article 2

Contractual Relationship between the Parties

2.1

Customer agrees to purchase and CITIC Telecom CPC agrees to provide the Service specified in the Customer Order, on the terms and conditions contained in the Agreement and in accordance with all applicable legal requirements.

2.2

If there is any conflict between any of the documents forming the Agreement, the following documents shall prevail in the following order:

• Customer Order;
• Specific Terms and Conditions for Datacenter Services (if applicable);
• SLA;
• Service Description;
• General Terms and Conditions.

Article 3

Ordering Procedure

3.1

Customer may order a Service using the forms of Customer Order made available by CITIC Telecom CPC.

3.2

The receipt of a Customer Order by CITIC Telecom CPC does not constitute the making of an Agreement. A Customer Order is only accepted when a CITIC Telecom CPC Project Manager informs Customer in writing about the start of the implementation of the Service, which will be no later than 7 calendar days after the Customer Order has been received by CITIC Telecom CPC. All Customer Orders may be accepted or refused at CITIC Telecom CPC sole discretion.

3.3

An Agreement is only legally binding when the Customer Order has been duly signed for acceptance by each authorized representative of Customer and CITIC Telecom CPC.

Article 4

Service Delivery and Quality

4.1

The following terms shall apply to the Service delivery:

a.   When a Service is delivered to Customer according to the respective Customer Order, Customer shall have a period of ten (10) calendar days to check the Service. If Customer within that time period, sends no claim to CITIC Telecom CPC, the Service shall be deemed accepted.

b.   Any tentative delivery date or lead-time provided by CITIC Telecom CPC to Customer which is not specified as “Committed Delivery Date” or “CDD” by CITIC Telecom CPC shall be deemed a target delivery date and shall not be binding on or create any liability for CITIC Telecom CPC.

c.   If a Service is not delivered by the CDD for reasons solely attributable to CITIC Telecom CPC, upon written request delivered within thirty (30) calendar days from the actual delivery date, Customer is entitled to the applicable remedies, if any, specified in the SLA. Such remedies shall be the sole and exclusive remedies of Customer in such circumstances.

4.2

The following terms shall apply to the Service quality:

a.   CITIC Telecom CPC shall use all reasonable endeavours to provide each Service without interruptions on a 24x7 basis and to remedy any Service faults or interruptions, in accordance with the Service Description. The Parties acknowledge however that it may be technically impracticable to provide the Service free of any faults or interruptions. Therefore, CITIC Telecom CPC cannot and does not guarantee that the Service will be uninterrupted or fault free.

b.   Subject to Article 4.2 (c) and (d) herein, in the event of a fault or interruption, Customer shall be entitled to the remedies, if any, specified in the relevant SLA.

c.   If CITIC Telecom CPC is requested by Customer to address a problem with a Service which proves to be caused by a problem in the network or equipment of Customer or its Personnel, or if the reported problem is caused by Customer or its Personnel, CITIC Telecom CPC reserves the right to charge all reasonable expenses incurred by CITIC Telecom CPC in investigating and resolving the reported problem.

d.   CITIC Telecom CPC is not responsible or liable for any non-performance of Service, or for any degradation or non-compliance of a Service from the descriptions and service levels provided in the Service Description or for any delay in the delivery thereof which:

(i.)   can be reasonably attributed to the actions or omissions of Customer or Customer’s Personnel:

(ii.)   cannot be addressed by CITIC Telecom CPC because Customer unreasonably refuses to release or allow access to its network or equipment for installation, testing or repair;

(iii.)   occurs during any period of planned maintenance or rearrangement purposes in accordance with the procedures set out in the Service Description;

(iv.)   is due to force majeure events as described in Article 8; or

(v.)   is the result of a suspension as described in Article 6; or

(vi.)   is the result of any termination event described in Article 11.5 or any such event that, with the giving of notice or lapse of time, would constitute such an event.

Article 5

Prices and Payment

5.1

The following billing principles shall apply to the provision of the Service unless otherwise expressly provided for in the Customer Order:

a.   Applicable installation (or ‘one-time’) charges (hereinafter ‘OTC’) shall accrue and may be invoiced by CITIC Telecom CPC in advance or in arrears of RFS Date.

b.   The applicable monthly, quarterly or annually recurring charges shall accrue from the RFS Date and may be invoiced in advance by CITIC Telecom CPC.

c.   Any recurring charge for partial periods commencing on the RFS Date or ending on the termination date of an Agreement shall be pro-rated. Where the RFS Date is delayed, the pro-rated recurring charge shall be adjusted on the invoice for the next Billing Period;

d.   Applicable usage-based charges and charges based on time and material rates shall accrue from the RFS Date and may be invoiced by CITIC Telecom CPC in arrears.

5.2

If a delay in the RFS Date can be reasonably attributed to actions or omissions of Customer or its Personnel, CITIC Telecom CPC may invoice the applicable recurring charges as of the day the Service would have been Ready for Service if such delay had not occurred.

5.3

Any service credit payable to Customer shall be credited against the relevant Service’s recurring charge in the invoice for the billing period following the request for such service credit by Customer. Any and all such service credits or penalties shall only be credited to Customer as long as Customer is not in default of its payment obligations as set out in the Agreement.

5.4

All prices, charges and other sums payable for or in respect of the Service by Customer under the Customer Order are exclusive of any applicable value added tax, duties and similar taxes and levies, which shall be payable by Customer.

5.5

All payments due by Customer to CITIC Telecom CPC or any of its Affiliates under any Customer Order shall be made gross, free of any right of counter-claim and without any deduction or withholding of any sum.

5.6

Customer shall pay all invoices within thirty (30) calendar days after the invoice date by transferring the invoiced amounts into the bank account designated on the invoice. In respect of all due and unpaid invoiced amounts, CITIC Telecom CPC reserves the right to charge (i) interest of one and three-quarters percentage (1.75%) per month of all invoiced amounts from the due date as set out above until full and final payment of such amounts and (ii) reasonable collection costs incurred in respect of such unpaid invoiced amounts, including but not limited to reasonable legal expenses. CITIC Telecom CPC reserves the right to use an external agent to collect unpaid invoiced amounts.

5.7

Customer may partially withhold payment of an invoice which Customer disputes in good faith, provided that:

a.   Customer shall notify CITIC Telecom CPC in writing of the dispute and of the grounds thereof within the payment period set out in Article 5.6;

b.   Customer shall only be entitled to withhold payment up to the lowest of i) the amount disputed in good faith by Customer, and ii) the amount that corresponds to twenty-five percent (25%) of the disputed invoice; and

c.   Any disputes pertaining to the Service Level Agreement are hereby excluded;

d.   If the Parties are unable to agree on the amount in dispute, the provisions of Article 10 shall apply.

5.8

CITIC Telecom CPC obligation to provide Services to Customer pursuant to an Agreement is subject to approval by CITIC Telecom CPC of Customer's creditworthiness. The Customer agrees to provide CITIC Telecom CPC with such credit information as CITIC Telecom CPC may reasonably request. CITIC Telecom CPC may require the Customer to provide a pre-payment, or other security satisfactory to CITIC Telecom CPC where:

a.   the Customer has an insufficient credit rating;

b.   the Customer has suffered a material and negative change in its financial or trading condition (as determined by CITIC Telecom CPC in its reasonable discretion); or

c.   the Customer has failed to make payment to CITIC Telecom CPC of any undisputed amount when due.

Article 6

Suspension of Service

6.1

CITIC Telecom CPC shall be entitled forthwith to suspend the provision of all or part of the Service and (where applicable) to disconnect, switch off, block online access to and/or remove Customer’s equipment, data or cables from CITIC Telecom CPC network, installations and/or equipment:

a.   if and in so far as CITIC Telecom CPC is requested to do so by a governmental or regulatory authority, is required to do so to comply with any statutory or regulatory requirements (or enforcement thereof) or is required to do so pursuant to an order of a court;

b.   if Customer and/or any of its Affiliates fails to pay any amount owed to, or Security demanded by CITIC Telecom CPC and/or any of its Affiliates when due within seven (7) calendar days after receipt by Customer of a written notice requesting the same and the circumstances in Article 5.7 do not apply;

c.   if the quality or availability of the services provided by CITIC Telecom CPC to other customers is, or is threatened to be, adversely affected by the conduct of Customer or Customer’s Personnel or by Customer’s equipment or cables;

d.   if the safety of persons or property is (or is threatened to be) adversely affected by, the conduct of Customer or Customer’s Personnel;

e.   if Customer becomes insolvent or has sought protection from its creditors in the form of a moratorium of payment or such other similar remedy available under any applicable insolvency legislation.

6.2

Where Article 6.1(a), 6.1(c) or 6.1(d) apply, CITIC Telecom CPC shall use its best efforts to notify Customer before or immediately after said suspension.

6.3

Customer shall be obliged to pay all charges that accrue throughout the period of suspension referred to in this Article, save in respect of suspension under Article 6.1(a) unless such suspension is attributable to a breach, fault, act or omission of Customer or its Personnel. A suspension shall be lifted within 1 (one) calendar Day after the grounds for the suspension have ceased to exist. CITIC Telecom CPC shall then be entitled to claim, and Customer shall pay upon demand, any reconnection charges incurred by CITIC Telecom CPC when lifting the suspension and resuming the provision of the Service.

Article 7

Limitation of Liability

7.1

Except for the warranties expressly provided in an Agreement, CITIC Telecom CPC makes no other warranty or guarantee, express or implied, under this agreement or otherwise, and disclaims all other warranties, including, but not limited to, warranties or conditions of merchantability, satisfactory quality, and/or fitness or a particular purpose.

7.2

Except in cases of gross negligence, wilful misconduct or fraud and to the extent permitted by law, CITIC Telecom CPC entire liability and Customer’s exclusive remedies against CITIC Telecom CPC for any damages arising from an act or omission relating to the Agreement, regardless of the form of action, whether in contract, tort or otherwise, shall be limited to the following:

a.   For Customer’s proven direct damages to real or tangible personal property, fifty percent (50%) of the charges paid by Customer over the previous twelve (12) months in respect of the relevant Service under the Agreement;

b.   For delays, interruptions or reductions in service availability under any SLA, the Service Credits listed in the SLA.

7.3

In any case CITIC Telecom CPC liability as referred to in Article 7.2 shall always be limited to a maximum of one million Euros (€ 1,000,000) per event or series of related events and to a maximum of two million Euros (€ 2,000,000) in any calendar year.

7.4

Subject only to the exception of gross negligence, wilful misconduct or fraud, a Party shall under no circumstances be held liable for any indirect loss, damage or expense, including, without limitation, loss of profits, revenues, goodwill, management time or anticipated savings or any other form of indirect or consequential damages resulting from such Party’s failure to perform its obligations under the Agreement and/or arising from any negligent conduct in connection with such performance.

Article 8

Force Majeure

8.1

A party shall not be held liable for failure in performing any of its obligations (with the exception of the obligation to make payments by either Party) under the Agreement if such failure is caused by or arises as a result of an event of force majeure including, but not limited to, the following examples (provided these examples were not caused or made possible due to the negligence of such Party): an act of God, fire, crime, cable or fibre cuts, prolonged general power outages, changes to the applicable laws and regulations, acts of governmental or military authorities, strikes, civil unrest, terrorism and war.

8.2

The Party who is victim of a force majeure event shall as soon as reasonably possible notify the other Party in writing about the occurrence of such event and the estimated extent and duration of its inability to perform its obligations under the Agreement.

8.3

In the event of the occurrence of a force majeure event, the Party victim of the force majeure event shall use all reasonable endeavours to minimise the effects of the force majeure event.

Article 9

Confidentiality

9.1

For a period of five (5) years from the date of the termination of the Agreement, Parties shall keep confidential all contractual documentation and terms contained in the Agreement and any and all other information about the other Party, including but not limited to information about the other Party’s business operations and customers that is acquired during the term of the Agreement.

9.2

The obligation of confidentiality referred to in Article 9.1 shall not apply to information which:

a.   is in or comes into the public domain other than by breach of the present obligation of secrecy;

b.   is required by law, regulation or judicial order or the rules of a relevant stock exchange to be disclosed;

c.   is already in possession of the non-disclosing Party; or

d.   is provided to the respective professional advisors, auditors or financiers of the Parties provided they are under the obligation to treat such information as confidential; or

e.  is rightfully received from a third party without breach of the present confidentiality obligation.

9.3

CITIC Telecom CPC may publicise the existence of the relationship between the Parties for the purpose of its marketing activities. Subject to the foregoing, neither Party shall make any press announcements concerning the Agreement or publicise the Agreement in any way without the prior written consent of the other Party.

Article 10

Governing Law and Dispute Resolution

10.1

The Agreement and, for the avoidance of doubt, the provision of the Service under any Customer Order, shall be governed by the laws of the Netherlands.

10.2

Any dispute concerning the implementation or interpretation of the Agreement or, for the avoidance of doubt, the provision of the Service under any Customer Order, which cannot be settled amicably between the Parties shall be brought before the competent court in Amsterdam, the Netherlands.

Article 11

Term and Termination

11.1

Each Agreement shall come into effect on the date of execution of the Customer Order by the Parties and shall expire on the last day of the Service Term. Each Service Term shall be equal to a period of at least one (1) year and shall thereafter continue for consecutive periods of three (3) months unless terminated earlier in accordance with the Agreement.

11.2

Subject to Article 11.3, the Agreement may be terminated by a Party:

a.   giving three (3) months’ written notice prior to the expiration of the initial Service Term.

b.   after the initial Service Term by giving three (3) months’ written notice.

11.3

If Customer terminates any Service prior to the RFS Date or if the Customer fails to cooperate with or allow CITIC Telecom CPC to start providing such Services within six (6) months after the execution of the Order, the Customer shall on demand by CITIC Telecom CPC pay, as liquidated damages (for such cancellation) but not as penalty, either (i) an amount representing all one-off charge, set up charges and two (2) months’ recurring charges; or (ii) any charges/cancellation charges paid and/or payable by CITIC Telecom CPC to any third party supplier in respect of any capacity, equipment, software, services, licence fees and/or other resources acquired by CITIC Telecom CPC for the purpose of supplying Services to the Customer, whichever is higher. If Customer terminates any Service after the RFS Date but prior to the end of the initial Service Term agreed for that Service in the Customer Order, or if CITIC Telecom CPC terminates any Service in accordance with Article 11.5 or Article 11.5A, Customer shall pay to CITIC Telecom CPC all charges for the Service provided up to and including the effective date of such cancellation plus a cancellation charge in an amount equal to the balance of the applicable recurring charges and/or usage-based volume commitment (then in effect at the time of cancellation) for such cancelled Service that would otherwise have become due and/or payable for the unexpired balance of the agreed Initial Term and each following period for which the Service was agreed to be provided.

11.4

In the event that a Service under an Agreement contains elements that are supplied by a third party, a different termination notice period may apply to such Service elements.

11.5

A Party shall at all times, and without compensation, be entitled to terminate each Agreement immediately and without notice if:

a.   the other Party becomes insolvent or bankrupt;

b.   the other Party has sought protection from its creditors in the form of a moratorium of payment or such other similar remedy available under any applicable insolvency legislation;

c.   an event of force majeure in accordance with Article 8 continues for a period exceeding three (3) months.

d.   the other Party fails to make any payment on its due date or commits any breach of any material obligation, and fails to make such payment or to remedy such breach within seven (7) calendar days after receipt of a written notice specifying the non-payment or breach and requiring it to be paid or remedied; or

e.   in relation to termination only by CITIC Telecom CPC, if Customer is subject to a suspension of the Service provided under such Agreement under Article 6.1 and such suspension has continued for seven (7) calendar days without the service being reinstated in accordance with Article 6.3.

CITIC Telecom CPC shall at all times, and without compensation, be entitled, in its discretion, to forthwith terminate all or any part of the Service, the respective Customer Order and/or the respective Agreement immediately and without notice if:-

(i)   Customer or any of its Associated Person is a designated target of any sanction, prohibition or restriction (including without limitation any relevant law, regulation, order, ordinance, resolution, decree, restrictive measure or other requirement having the force of law), adopted by the U.S., U.N., E.U. (or its respective member states), U.K., and/or other relevant governmental authority (collectively “Sanctions”); or

(ii)   Customer or any of its Associated Person acts directly or indirectly for or on behalf of a designated target of Sanctions; or

(iii)   the provision of a Service, or the execution or performance of the respective Agreement would expose CITIC Telecom CPC to any of the Sanctions.

For the purpose of this Article, Associated Person means a natural person, company, corporation, firm, partnership, cooperative, association, government, state, statutory authority, foundation or trust, which or who is (a) an Affiliate of the Customer, (b) an owner of the Customer, (c) a director or officer of the Customer, or (d) any other representative of the Customer.

11.6

Upon termination of any Agreement, CITIC Telecom CPC may require Customer to disconnect and remove all or any Customer equipment and infrastructure elements from CITIC Telecom CPC's network.

11.7

CITIC Telecom CPC shall have a lien on, and Customer shall not be entitled to remove, any Customer equipment or infrastructure elements installed or stored in CITIC Telecom CPC's premises until all sums due to CITIC Telecom CPC under the Agreement have been paid in full by Customer.

11.8

The provisions of Article 7 through 15 shall survive the completion or termination of the Agreement.

Article 12

Intellectual Property Rights

12.1

Subject to the restrictions and the terms and conditions set out elsewhere in the Agreement, CITIC Telecom CPC grants to Customer a non-exclusive, non-transferable license to use the software, equipment or other materials provided in connection with the Service on an ‘as is’ basis for internal purposes only and in so far as is necessary to utilise the Service for the term of the Agreement.

12.2

All intellectual or industrial property rights to any software, equipment or other materials, including documentation provided to Customer in connection with the Service shall solely be held by CITIC Telecom CPC or its suppliers and/or licensors.

Article 13

Data Protection

13.1

Each Party undertakes to carry out its obligations pursuant to General Data Protection Regulation (‘GDPR’). Each Party warrants that any personal data it makes available to the other Party in accordance with the Agreement shall be properly processed in accordance with the GDPR applicable Data Protection legislation and when CITIC is the disclosing party, such disclosure will be in accordance with the CITIC Telecom CPC Privacy Policy. In case personal data will be processed within the scope of this Agreement, the Parties will enter into a Data Processor Agreement that will be attached to this Agreement. Any disclosure of data from the disclosing Party to the non-disclosing Party will be done lawfully and solely on the grounds for processing personal data under the GDPR, in accordance with the Data Processor Agreement and in accordance with the purposes set out in the CITIC Telecom CPC Privacy Policy. Where required under the GDPR, each disclosing Party will have obtained all necessary consents to forward such information to the non-disclosing Party. CITIC Telecom CPC reserves the right to audit whether the other Party handles the disclosed personal data in accordance with the CITIC Telecom CPC Privacy Policy. CITIC Telecom CPC cannot be held accountable for any data breaches by Customer.

13.2

The disclosing Party shall indemnify the non-disclosing Party in respect of all losses, liabilities, demands, costs, charges, expenses, claims, actions, sanctions or proceedings (whether civil or criminal and arising in any jurisdiction) incurred or sustained by the non-disclosing Party as a result of any breach of Article 13.1 or any contravention of the applicable data protection legislation.

Article 14

Notices

14.1

All notices sent between the Parties shall be in writing and shall be (i) dispatched by e-mail, effective upon transmission, with return receipt by the same method or (ii) sent by registered letter with return receipt requested to the address of the relevant Party as indicated below. Either Party may change its address for notice by giving written notice to the other Party.

To CITIC Telecom CPC:

Attention: Network & Customer Operation Director
Van Heuven Goedhartlaan 937
1181 LD Amstelveen
The Netherlands
Email: nmc-eu@citictel-cpc.com

To Customer: see details listed on Customer Order

Article 15

Final Provisions

15.1

No variation, amendment, modification and addition to or cancellation of any provision of the Agreement or any part thereof shall be effective unless agreed upon in writing by the duly authorised representatives of Customer and CITIC Telecom CPC.

15.2

CITIC Telecom CPC may amend the General Terms and Conditions any time, notifying the Customer thereof by e mail at least two weeks in advance. Orders accepted before entry into force of the amended General Terms and Conditions are unaffected by the changes.

15.3

Nothing in the Agreement shall be deemed to constitute a partnership, agency or joint venture between CITIC Telecom CPC and Customer.

15.4

None of the rights and obligations contained in the Agreement shall be assigned or transferred by either Party without the prior written consent of the other Party (which neither Party shall unreasonably withhold or delay).

15.5

Failure or delay by either Party in exercising any right or remedy will not constitute a waiver. In the event that any provision of this Agreement shall be declared invalid, the entire Agreement shall not fail on its account, and that provision shall be severed, with the remainder of the Agreement continuing in full force and effect.

15.6

This Agreement constitutes the complete and exclusive statement of understanding between the Parties, and supersedes all prior or concurrent proposals and other communications between the Parties relating to the Service ordered.