Standard Terms and Conditions
Telecommunications & Technology Asia Ltd. (the “Company”) and Customer (as identified on the Services Order Form) agree to the following TTAsia’s Standard Terms and Conditions, as may be supplement by any additional terms attached hereto (the “Terms and Conditions”). The Services Order Form (“Order Form”) executed by Customer and these Terms and Conditions are collectively referred to as the “Agreement”.
- DEFINITIONS. For purposes of the Agreement, the following definitions shall apply:
- “Malware” means
- virus, which is a piece of program code, often including a self-replicating element, usually disguised as something else that causes an unexpected and undesirable event and which is designed so that it may infect other computer system;
- spyware, which is a piece of program code that is placed in computer systems without the owner’s consent or by misguiding the owner to grant the consent;
- phishing attack, which is a message or other internet content that attempts to fraudulently acquire sensitive information, such as passwords and credit card details, by masquerading as a trustworthy entity’s apparently official electronic communication; or
- ransomware, which is computer malware that installs covertly on a victim’s computer, executes a cryptovirology attack that adversely affects it, and demands a ransom payment to decrypt it or not publish it.
- “Open Proxy” means an HTTP server that allows third-party relay or proxy of web traffic
- “Email” means any SMTP message sent or received via the Services.
- “Junk Email” means unsolicited commercial Email.
- “Open Relay” means an SMTP Email server that allows third-party relay of Email messages.
- DESCRIPTION OF SERVICES. The Company will provide the services designated in the Order Form (the “Services”). The Company reserves the right to materially change the functionality of the Services upon prior notice to Customer.
- CUSTOMER OBLIGATIONS. Customer will provide the Company with all technical data and all other relevant information and assistance the Company may reasonably require to supply the Services. To the best of Customer’s knowledge, all information supplied to the Company will be complete, accurate and provided in good faith.
Customer acknowledges and agrees that the Company will not provide the Services to Customer unless Customer’s Email systems are directly and permanently connected to the Internet with a fixed IP address. Customer agrees not to intentionally:
- transmit through the Services any Junk Email, Malware or Bulk Email;
- allow its systems to serve as an Open Relay;
- transmit obscene or pornographic material;
- impersonate any person or entity or falsely state or otherwise misrepresent an affiliation with a person or entity;
- use the Service for any purpose that is in violation of any applicable law or is otherwise an infringement on the rights of any person or entity, or use the Services in the event Customer provides similar services;
- modify, decompile, reverse engineer, disassemble or reproduce any components of the Services;
- interfere with or disrupt the Services or any networks connected to Services;
- conduct fraudulent activities, including the initiation or propagation of any Malware;
- take an unreasonable or disproportionately large load (traffic bandwidth or number of messages per user exceeding 150% of the average for all Company customer using similar services) on Company infrastructure providing the Services, unless the parties agree a bandwidth overage charge rate as set forth in a Service Order Form;
- allow the use of its system to be used as Open Proxy, resell the Services, or otherwise permit the use of the Services by any third party user that are not bound by these Terms and Conditions (each of which shall be included on the definition of “Prohibited Use”).
At Company’s reasonable request, Customer shall provide to Company comments, criticisms, suggested improvements and other feedback, about the use, operation, functionality and features of this Services (collectively, the “Feedback”). The Feedback shall include, without limitation, any information about the operating results, known or suspected bugs, errors or compatibility problems, user-desired features and the result of any and all benchmark or similar test conducted within the term of this Agreement. In addition, Customer shall report to Company any unusual, unplanned or out –of-the-ordinary performance of the Services observed by any of Customer’s personnel. Customer agrees that Company has the unrestricted right to use the Feedback at its sole discretion, without notice to, payment to or consent from Customer, provided that Company use of the Feedback complies with the nondisclosure obligations set forth in Section 12 below. Customer agrees not to disclose Feedback to any third party.
- SYSTEM ADMINISTRATOR. Customer will provide the Company with technical contact information regarding Customer’s system administrator (“System Administrator”) who will be responsible for providing information with respect to Customer’s Email accounts and domains, setting parameters for the Services, accessing quarantined transmissions, and serving as the point of contact between the Company and Customer. The Company will provide Customer with a confidential access code to the administration tool. Customer agrees that only the System Administrator will have access to the access code and the access code shall remain the Confidential Information of the Company (as defined below). Any action taken by the System Administrator will be deemed the authorized act of Customer.
- TERM. The initial term of this Agreement shall commence on the Effective Date set forth on the Order Form and continue for the term set forth therein unless earlier terminated pursuant to the terms of this Agreement. Subsequently, this Agreement shall renew for successive terms of equal length as the initial term unless either party provides written notice of its intent not to renew this Agreement at least one (1) month prior to the end of the current term. Customer acknowledges that it is its responsibility to review the Terms and Conditions prior to the commencement of each successive term, and that by continuing to receive the Services, Customer shall be deemed to have accepted such Terms and Conditions.
- FEES; INVOICE; AUDIT. Customer will pay the Fees set forth on the Order Form, which are subject to change based on Customer’s request for an increased number of users served or other options ordered by Customer. In the event Customer exceeds the contracted number of authorized users in a given term, the Company reserves the right to bill for average on a per user basis at the contracted user rate.
The Fees for any renewal period shall be at the Company’s then current rate unless otherwise agreed to in writing by the parties.
Customer is responsible for the payment of any and all taxes related to use of the Services (excluding taxes based on the Company’s income)
Customer shall pay all invoiced Fees within fourteen (14) days of the invoice date; provided that, if any invoice is disputed by Customer, Customer shall:
- pay any undisputed amount within fourteen (14) days of the date of the invoice;
- notify the Company in writing of the details of the disputed amount no later than ten (10) days after the date of the invoice; and
- cooperate with the Company in good faith to resolve any disputes and if not resolved within ten (10) days thereafter, the Company may suspend the Services or terminate the Agreement as provided herein. Any payment not received when due shall accrue interest at the rate of one and one-half percent (1.5%) per month or the highest rate permitted by law, whichever is lower.
The Company will have the right at its expense and with reasonable prior notice to Customer to audit Customer’s compliance with the terms of this Agreement, including but not limited to the number of authorized users. If any audit reveals that Customer has underpaid the Fees due to the Company hereunder, Customer will promptly remit such underpaid amounts plus interest thereon at the rate of one and one-half percent (1.5%) per month or the highest rate permitted by applicable law, whichever is lower.
- SUSPENSION OF SERVICE. The Company may suspend the Services as follows:
a. Immediately if the Company deems it necessary to terminate any Prohibited Use, either directed at or originating from Customer’s domains or servers; or
b. Upon written notice to Customer if Customer breaches this Agreement and fails to cure such breach to the Company’s satisfaction within five (5) days after the Company’s written notice specifying the breach.
Suspension of Services shall be without prejudice to any rights or liabilities accruing prior to or during the suspension, including but not limited to Customer’s obligation to pay Fees.
a. The Company may terminate this Agreement for cause immediately upon email notice to Customer: (a) in the event that the Company does not receive Customer’s payment of any non-disputed Fees within thirty (30) days of the invoice date; (b) Customer fails to remedy any situation giving rise to a Suspension of Service; (c) Customer commits a material breach of this Agreement; or (d) the Company makes a reasonable determination that Customer’s traffic volume is disproportionately large. In the event of (d) above, the Company may request the Customer enter negotiations regarding a Fee adjustment as a prerequisite to continuing Services. Within thirty (30) calendar days after termination or expiration of this Agreement, Customer will: (a) return to the Company all materials provided to Customer by the Company under this Agreement; and (b) certify in writing through an authorized representative of Customer that such return has been effected.
b. If the Customer terminates the Service prior to the end of its committed agreement, the Customer shall be liable to immediately pay to the Company as liquidated damages and not as a penalty,100% of charges payable for the remainder of agreement term.
Termination of this Agreement shall be without prejudice to any rights or liabilities accrued as of the date of the termination. Upon termination, all Fees shall become immediately due and payable and all rights and licenses of Customer to receive the Services under this Agreement shall immediately terminate.
- CUSTOMER SERVICE. If the Order Form indicates that the Services are ordered via a Company partner (“Channel Partner”), Customer agrees that it will seek technical support from Channel Partner. The Company will provide telephone support to Channel Partner, or if there is no Channel Partner on the Order Form, the Company will provided direct technical support to Customer. Customer shall designate in writing up to three (3) persons with authority to contact the Company’s Customer Service department. Customer Service will not be provided to any non-authorized persons.
- MAINTENANCE AND SUSPENSION. Customer acknowledges and agrees that the Company may from time to time perform maintenance on or otherwise temporarily suspend the Services. The Company will use commercially reasonable efforts to minimize any disruption of Services.
- SECURITY. Although information transmitted to the Company is stored in secure operating environments, Customer understands that no data transmission over the Internet can be guaranteed 100% secure. The Company is not responsible for any interception or interruption of any communications through the Internet. Customer is responsible for maintaining the security of its networks, servers, applications and access codes.
- CONFIDENTIALITY; PRIVACY. Each party agrees and undertakes that during the term of this Agreement and for three (3) years thereafter, it will keep confidential and will not use for its own purposes without the prior written consent of the disclosing party any information of a confidential nature which may become known to the receiving party from the disclosing party (“Confidential Information”) unless: (i) such disclosure is otherwise permitted or contemplated by this Agreement; (ii) the information is publicly known or already known to the receiving party at the time of disclosure; (iii) the information subsequently comes lawfully into the possession of the receiving party from a third party; (iv) disclosure is required by court order or otherwise by law; (v) disclosure is made for a proper purpose to the senior management of a Party’s holding company. Customer acknowledges that the Company’s Intellectual Property (defined below) constitutes Confidential Information of the Company
- INTELLECTUAL PROPERTY. Customer acknowledges and agrees that, as between the Company and Customer, the Services (including any associated software, hardware, components and tools) are and will remain the sole property of the Company, and that the Company will retain sole ownership of all right, title and interest in and to the Services, as well as any derivative works thereof, including but not limited to copyrights, patent rights, trademark and service mark rights, trade secret rights, moral rights, and all other intellectual property and proprietary rights (“Intellectual Property”).
- THIRD PARTY INFORMATION. Customer acknowledges that independent third parties may supply some of the information used in the Services, such as Malware definitions and DNS Black List. While the Company makes every effort to ensure the accuracy of all information, the Company makes no warranty as to the accuracy of any such third party information.
- DISCLAIMER OF WARRANTIES AND LIMITATIONS OF LIABILITY. THE SERVICES ARE PROVIDED “AS IS,” AND THE COMPANY MAKES NO WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, WITH RESPECT TO THE SERVICES, INCLUDING BUT NOT LIMITED TO WARRANTIES OF QUALITY, PERFORMANCE, MERCHANTABILITY, FITNESS FOR ANY PARTICULAR PURPOSE, CONFORMITY TO ANY REPRESENTATION OR DESCRIPTION, OR NON-INFRINGEMENT. TO THE EXTENT NOT PROHIBITED BY APPLICABLE LAW, THE COMPANY’S AGGREGATE LIABILITY UNDER THIS AGREEMENT, WHETHER FOR BREACH OR IN TORT, IS LIMITED TO THE FEES PAID BY CUSTOMER FOR THE TWO MONTHS IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO SUCH LIABILITY. IN NO EVENT WILL THE COMPANY BE LIABLE FOR ANY INDIRECT, PUNITIVE, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES IN CONNECTION WITH OR ARISING OUT OF THIS AGREEMENT (INCLUDING BUT NOT LIMITED TO ANY LOST PROFITS, LOST SAVINGS, LOSS OF CUSTOMERS, OR LOSS OF USE OF, ANY SOFTWARE, DATA, OR EMAILS, BUSINESS INTERRUPTION, DELAYS OR FAILURE TO DELIVER EMAILS, DELAYS OR FAILURE TO DETECT JUNK EMAIL OR MALWARE, OR WRONGFULLY IDENTIFYING EMAIL AS JUNK EMAIL OR AS A MALWARE) HOWEVER CAUSED AND REGARDLESS OF THE LEGAL THEORY OF LIABILITY, EVEN IF THE COMPANY HAS BEEN PREVIOUSLY ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND EVEN IF ANY EXCLUSIVE REMEDY PROVIDED FOR HEREIN FAILS OF ITS ESSENTIAL PURPOSE.
Without limiting the foregoing, Customer acknowledges that, as Malware are regularly created and distributed, the Services are intended to detect only specific known Malware and some unknown Malware behavior patterns. The Company does not warrant that the Services will detect all Malware. In addition, false Malware detections might occur and, if in any doubt, Customer should contact the Company to assess if a positive detection is correct. Further, Customer acknowledges that the Services may not be able to scan certain Email or attachments, which are under the direct control of the email sender (such as password protected and/or encrypted attachments).
Customer agrees to indemnify, defend, and hold the Company harmless from and against any and all claims, liabilities, damages, fines, penalties, losses, costs and expenses (including reasonable attorneys’ fees) arising out of or relating to (i) any breach by Customer of this Agreement; (ii) any information or content passing through the Services and/or the Company’s network to or from Customer; (iii) any taxes arising from the Services whether now in effect or imposed in the future (excluding taxes based on the Company’s income); and (iv) claims by third-parties arising from Customer’s use of the Services (excluding claims that the Services, as provided by the Company, infringe third party intellectual property rights).
The Company agrees to indemnify, defend, and hold Customer harmless from and against any and all claims, liabilities, damages, fines, penalties, losses, costs and expenses (including reasonable attorneys’ fees) arising out of third party claims that Customer’s authorized use of the Services, as provided by the Company, infringes the intellectual property rights of such third party. In the event that a claim of infringement is made or threatened, the Company may: (i) modify the Services to render them non-infringing; (ii) secure for Customer the right to use the Services; or (iii) terminate this Agreement. The foregoing states the entire liability of the Company with respect to infringement.
- FORCE MAJEURE. The parties shall be relieved of any obligations under this Agreement if performance is hindered or prevented by circumstances beyond a party’s control including, but not limited to, act of God, acts of civil or military authority, fines, epidemics, floods, earthquakes, riots, wars, strike, failure of third party electronic or mechanical equipments or communication lines and government actions.
- WAIVER. The failure of a party to exercise or enforce any right under this Agreement shall not be deemed to be a waiver of that right nor operate to bar the exercise or enforcement of it at any time or times thereafter.
- SEVERABILITY. If any part of this Agreement is determined to be invalid or unenforceable pursuant to applicable law including, but not limited to, the warranty disclaimers and liability limitations set forth above, then the invalid or unenforceable provision will be deemed superseded by a valid, enforceable provision that most closely matches the intent of the original provision and the remainder of this Agreement shall continue in effect.
- JURISDICTION/GOVERNING LAW; LIMITATION PERIOD. These Standard Terms and Conditions is governed by the Laws of the Hong Kong Special Administrative Region of the People’s Republic of China (“Hong Kong”).
Customer agrees that any claim or cause of action arising out of this Agreement must be filed within one (1) year after such claim or cause of action arises.
- NOTICE. Any notice required in this Agreement shall be delivered by email, facsimile or mail sent to the addresses set forth on the Order Form. Notices shall be deemed effective upon receipt.
- BINDING EFFECT AND ASSIGNMENT. This Agreement shall be binding upon and inure to the benefit of the parties and their respective successors and assigns. The Company may assign this agreement or any of their rights or obligations under this agreement without the prior written consent of Customer. Customer may not assign this Agreement without the prior written permission of the Company. However, consent is not required for the Company to assign this Agreement.
- SURVIVAL. Rights and obligations which by their nature should survive will survive the termination or expiration of this Agreement, including but not limited to Sections 5, 7, 9, 12, 13, 14, 16, 17, 18, 20, 21, 22 and 23.
- ENTIRE AGREEMENT. This Agreement constitutes the entire understanding between the parties with respect to the subject matter herein and expressly supercedes any previous statements or agreements between the Company and Customer.